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The Trump Administration is rapidly turning the clock back on climate policy and environmental regulation. Despite overwhelming, peer-reviewed scientific evidence, administration officials eager to promote greater use of fossil fuels are disregarding climate science. This Article argues that this massive and historic deregulation may spawn yet another wave of legal innovation as litigants, including states and their political subdivisions, return to the common law to protect the health of the planet. Prior to the emergence of the major federal environmental laws in the 1970s, the common law of nuisance gave rise to the earliest environmental decisions in U.S. history. In some of these cases, the Supreme Court issued injunctions to control significant sources of air and water pollution, but the Court later held that the Clean Water Act and Clean Air Act displaced the federal common law of nuisance.

This Article argues that official climate denial may yet revive the common law as a regulatory backstop. If the U.S. Environmental Protection Agency reverses its earlier endangerment finding for greenhouse gas emissions, the Clean Air Act may no longer displace the federal common law of nuisance. While expert administrative agencies normally are more competent than the judiciary in fashioning regulatory policy, agencies that deny climate science should expect to face judicial intervention. As described in this Article, such action is consistent with the historic role the judiciary has played when other branches of government failed to prevent significant environmental harm.

First, the Supreme Court’s increased interest in patent law tracks the rising importance of intellectual property in our society. As industrial manufacturing in the U.S. economy has declined, ideas have increasingly become our country’s economic lifeblood. The U.S. Patent and Trademark Office (PTO) has estimated that between 2010 and 2014 “the share of total U.S. GDP attributable to IP-intensive industries increased” by 10 percent, “from 34.8 percent in 2010 to 38.2 percent in 2014.”10 Apple’s supply chain may stretch around the world, but its packaging says “Designed by Apple in California.”11 The Supreme Court seems to appreciate the reality that we live in an innovative economy, and the rules that shape the protection and ownership of inventions are critically important.

Second, the economic importance of intellectual property has created a litigation environment in which companies are willing to make the investment required to take a case all the way to the Supreme Court. As formal trials become rarer across the spectrum, patent cases are the notable exception, and the monetary stakes that support that type of commitment also encourage parties to stick it out on appeal. Litigants have long known that the high reversal rate in the Federal Circuit gives trial losers a decent shot at relief on appeal. And increasingly litigants are thinking beyond the first level of appellate review. The Supreme Court’s interest in patent law has created a feedback loop in which parties begin to think earlier and more strategically about what issues they might take to the Supreme Court. That increases the pool of quality cert. petitions, often championed by specialist Supreme Court counsel, which in turn encourages the Court to take more cases.

In March 2012, the U.S. Supreme Court dealt a blow to the biotechnology industry, issuing a decision that will render many methods of medical diagnosis unpatentable. In Mayo Collaborative Services v. Prometheus Laboratories, Inc., the Court invalidated patents on a method to determine the appropriate dosage level of the drug thiopurine, which is used to treat autoimmune diseases.1 This method, in the Court’s view, did nothing more than apply an unpatentable law of nature, the correlation between thiopurine levels in the bloodstream and the drug’s efficacy, in a manner that was well-understood by doctors.2 3 To support its analysis, the Court twice cited Creation Without Restraint,4 the recent, pathbreaking book by Christina Bohannan5 and Herbert Hovenkamp.6

As the Supreme Court’s recently heightened interest in patent law illustrates,7 there is widespread belief that intellectual property (“IP”) law is in crisis. Common critiques of patent law are that the Patent and Trademark Office (“PTO”) grants too many patents, that these patents have poorly defined boundaries, and that patent litigation is too expensive and unpredictable. Patent law’s problems have inspired dozens of books,8 exponentially more scholarly articles, and even an episode of NPR’s This American Life.9 Congress has also recognized that patent reform is needed, passing the America Invents Act,10 which is intended to “improve patent quality and limit unnecessary and counterproductive litigation costs.”11 As for copyright law, the primary concern is interest-group capture of the legislative process by content owners (such as movie studios and record companies) at the expense of users (consumers, educators, and other artists), resulting in vast expansions of the rights and enforcement powers of copyright holders.12

The U.S. Supreme Court has, of late, been deciding more patent law cases. Given the special national jurisdiction of the U.S. Court of Appeals for the Federal Circuit—which hears, among other things, all appeals “arising under” U.S. patent laws2—that means the Supreme Court has been reviewing more Federal Circuit cases. As Court watchers note, the Federal Circuit’s patent jurisprudence has not fared well. For example, Ronald Mann,3 who covers “commercial law and intellectual property” for SCOTUSblog,4 recapped the Court’s May 2017 decision on the scope of the patent exhaustion doctrine this way:

The court has been deciding a steady diet of patent cases for much of the last decade and has been rejecting the U.S. Court of Appeals for the Federal Circuit’s rulings in those cases almost routinely; the Federal Circuit is now 0 for 5 in the current term, by far the worst record of any of the federal courts of appeals.5

To state the obvious, Americans do not trust the federal government, and that includes the Supreme Court. Americans believe politics played “too great a role” in the recent health care cases by a greater than two-to-one margin. Academics continue to debate how much politics actually influences the Court, but Americans are excessively skeptical. They do not know that almost half of the cases this Term were decided unanimously, and the Justices’ voting pattern split by the political party of the president to whom they owe their appointment in fewer than seven percent of cases. Why the mistrust? When the Court is front-page, above-the-fold news after the rare landmark decision or during infrequent U.S. Senate confirmation proceedings, political rhetoric from the President and Congress drowns out the Court. Public perceptions of the Court are shaped by politicians’ arguments “for” or “against” the ruling or the nominee, which usually fall along partisan lines and sometimes are based on misleading premises that ignore the Court’s special, nonpolitical responsibilities. The Framers of the Constitution designed a uniquely independent Supreme Court that would safeguard the Constitution. They feared that the political branches might be able to overwhelm the Court by turning the public against the Court and that the Constitution’s strict boundaries on congressional power would give way. As evidenced in the health care cases, politicians across the ideological spectrum have played into some of the Framers’ fears for the Constitution by politicizing the decision and erasing the distinction between the Court’s holding and the policy merits of the heath care law. Paradoxically, many of the elected officials who proudly campaign under the battle cry of “saving our Constitution” endanger the Court and the Constitution with their bombast. Politicization of the Supreme Court causes the American public to lose faith in the Court, and when public confidence in the Court is low, the political branches are well positioned to disrupt the constitutional balance of power between the judiciary and the political branches.

How politicized is the court?

Justices of the Supreme Court have repeatedly claimed that the decisions about what cases to decide and how to decide them are not affected by politics. Justice John Roberts said in his confirmation hearing that he is like an umpire, not a batter. Justice Neil Gorsuch said that justices are not like “politicians with robes.” Shortly after her confirmation, Justice Amy Coney Barrett told an audience that her goal was “to convince you that this Court is not comprised of a bunch of partisan hacks.” The justices are not convincing the American people. Favorable ratings of the Court have declined dramatically, according to numerous polls. This fall, a Gallup poll found that 58% of Americans “disapprove” of the job the Court is doing, which aligns with the 60% who disapproved of overruling Roe. A substantial majority have lost faith in the Court’s vaunted impartiality and believe it is too affected by “politics.” A Quinnipiac poll conducted after the Dobbs leak in May of last year found that 63% of Americans believe the Supreme Court is mainly motivated by politics. A Yahoo poll around the same time found that 74% believe the Court is “too politicized.” The Court’s wounds are entirely self-inflicted. It has a far-right agenda and the scholarship informing its decisions is often questionable. Worse, new details have come to light of relationships some justices have had with wealthy ideological soulmates, including those with interest in cases before the Court. The Court’s credibility and the public’s acceptance of its decisions depends upon trust that it is not subject to outside influence. While lobbying may be common and acceptable in the legislative and executive branches, it is not — nor ought not to be — conceivable in our courts.

With the Supreme Court due to overturn Roe v. Wade within the coming months, the left has been berated by liberals with the familiar talking point that in order to protect abortion rights we must "vote blue." Predictably, liberals took to social media soon after the leaked draft opinion was reported, blaming Susan Sarandon and other third party voters for the upcoming Supreme Court decision, while completely ignoring the Democratic Party's culpability in this travesty. While the Republican Party is the most vocal anti-choice party, the Democrats are not blameless for this miscarriage of justice. While the popular sentiment may be to "vote blue" to protect abortion rights, this runs afoul of history. In 1974, then-Senator Joe Biden stated in regard to Roe v. Wade, "I don't like the Supreme Court decision on abortion. I think it went too far." He went on to say, "I don't think that a woman has the sole right to say what should happen to her body." A few years later in 1982, Biden was one of only two Democratic lawmakers who supported a constitutional amendment that allowed states to overturn Roe v. Wade and pass their own laws on abortion. Just nine years later, Joe Biden would then be largely to blame for the confirmation of anti-abortion Justice Clarence Thomas. Fast forward to 2015, when eventual Democratic nominee for president Hillary Clinton told MSNBC that her position on abortion was flexible and that she was willing to "compromise" with Republicans: "[If] there's a way to structure some kind of constitutional restriction [on abortion] that takes into account the life of the mother and her health, then I'm open to that." One year later, Clinton would select anti-abortion Tim Kaine to be her vice presidential nominee. Following Clinton's defeat, top Democrats were still not convinced of the necessity to promote bodily autonomy. In 2017, Nancy Pelosi asserted that Democrats fighting for abortion rights were "hurting the party" and that the party should be open to anti-choice candidates. Senator Bernie Sanders and DNC head Tom Perez echoed these sentiments, saying that the party should not "demand fealty" to the party's ostensibly pro-choice positions. This flexibility on abortion policy is currently being put into practice, as Speaker Nancy Pelosi, Maryland Congressman Steny Hoyer, and South Carolina Congressman Jim Clyburn are all endorsing anti-choice Texas Congressman Henry Cuellar in his primary against pro-choice progressive Jessica Cisneros. With this split between liberal and conservative Democrats being tolerated within the party, it is commonplace for the liberal Democrats to blame the more conservative Democrats such as Senators Joe Manchin and Kyrsten Sinema for the party's failure to pass progressive legislation, including the codification of abortion rights — never mind the fact that even before the 50-50 Senate split, the Democrats still failed to codify abortion rights into federal law when they had an overwhelming majority during the first two years of the Obama presidency. President Obama, it should be noted, promised to sign the Freedom of Choice Act on day one of his presidency. Once in office, he reneged on his promise and stated that the bill was "not [his] highest legislative priority." For nearly half a century the Democrat establishment has continually utilized fear in an attempt to get people to the polls, telling us that a Republican government will almost certainly seek the reversal of Roe v. Wade. Weaponizing this fear has been prioritized over the actual codification of abortion rights, and now the reversal of Roe is occurring under a Democrat government. The liberals of the Democratic Party have done nothing to stop the conservative elements in their party. "Progressive" lawmakers stayed silent during the 2018 primary election when Joe Manchin was challenged by progressive activist Paula Jean Swearengin, and Senator Elizabeth Warren even endorsed Manchin's bid for re-election. Manchin went on to vote for two out of the three anti-abortion Supreme Court justices nominated by President Trump, and did so without any consequences from the Democratic Party. Since winning both chambers of Congress and the Presidency in 2020, the Democrats have done next to nothing to crack down on conservative Democrats and secure abortion rights at the federal level. Democrats have had the option to expand the Supreme Court, end the filibuster, and to put hard pressure on Manchin and Sinema and other conservative elements in their party, but instead have chosen to sit back, throw up their hands, and declare that all is lost. Even in the immediate aftermath of the recent Supreme Court leak, President Biden stated that he is unwilling to end the filibuster in order to codify abortion rights. The weakness of the Democratic Party is just as much to blame for the gutting of reproductive rights as is the determination of the Republicans. This is not just an issue at the federal level either. The West Virginia Democrats (WVDP) controlled the state for eight decades and did virtually nothing to protect abortion rights. The WVDP has even helped to strip away abortion rights; during a vote on the anti-abortion HB 4007 in January 2020, only five of 41 Democrats voted against the bill. In 2021, almost one-third of the Democrats in the House of Delegates voted for the anti-abortion HB 2982. In 2022, six House Democrats voted in favor of SB 468, which banned abortion based on a person's "reason" for receiving the procedure — a bill that even three House Republicans voted against. Almost half of the Democrats present in the State Senate voted for HB 2982 and over half of them voted for SB 468 — but of course no Senate Democrats will ever face consequences for their anti-abortion votes since Senate Minority Leader Stephen Baldwin is virulently anti-choice, having even co-sponsored an anti-abortion resolution in the State Senate just this year. When even the top leaders of the WVDP are anti-choice, and the leaders of the national Democrats openly express their approval of anti-abortion candidates, how can anyone seriously expect to win abortion rights legislation by "voting blue"? Make no mistake: this is a small part of the larger class war. Abortion will always be legal for the rich and powerful capitalists; and so long as their system and their two parties are in charge, abortion rights will never be safe for the working class. In order to secure any fundamental human rights, it is imperative that the working class completely break from the Democratic and Republican parties.

With Roe v Wade overturned by the US supreme court and American women now living in a nation where our most fundamental rights are dependent on the state in which we reside, a lot of us are looking around and asking, “how did we get here?” There is much blame to go around, and the bulk of it rests on the shoulders of the right-wing anti-abortion movement that sprung out of the white supremacist movement that fought to maintain Jim Crow and school segregation. The racist, misogynist Religious Right gained tremendous power within the Republican party; the Republican party proved itself willing to lie, cheat, and steal to get their way; and as a result, Americans are now living in an undemocratic nation of reactionary minority rule. But the Democratic party hasn’t done enough to help itself, its supporters, and women more broadly. There are a great many points where Democrats could have kept the country on the rails. Chief among them is in the aftermath of the 2000 election, when Al Gore won the popular vote, but the supreme court, along partisan lines, installed George W Bush as president. If the reverse had happened – if our arcane Electoral College system had put a Democratic loser in office over a Republican who won more votes – rest assured that the Republican party would have gotten rid of that undemocratic institution as soon as it had the chance. Democrats, though, did nothing – even though “one person, one vote” is likely how most Americans believe our system works, and is an easy advocacy line. When Obama took office, Democrats controlled both houses of Congress. In the states, Democrats controlled more legislatures than Republicans did; more states had a Democratic trifecta (Democratic governors plus both state legislative bodies) than a Republican one. There was a brief moment here to get a lot done in the name of both democracy and women’s rights: get rid of the undemocratic Electoral College; codify Roe; rescind the Hyde Amendment, which bars federal Medicaid dollars from funding abortions for poor women, and the Helms Amendment, which bars US funding from paying for abortions for women overseas. Advocates asked the Obama administration to do all of that; they did none. If there is one moment that portended all of what we’re seeing today, it was Bush v. Gore in 2001. Democrats had a chance to correct it. They had a base that was livid about what had happened, and a country primed to accept a “one person, one vote” rule for elections. And despite a huge win in 2008, they did absolutely nothing to prevent such an undemocratic result from happening again. Two years after Obama’s big win, Republicans swept the midterms in what remains one of the most significant shifts in American political power in the last century. It wasn’t just standard Republican candidates who won – it was Tea Party enthusiasts, right-wing extremists, conspiracy nuts, hardcore misogynists and unrepentant racists, all of whom set the state for Trump’s rise and his eventual party takeover. Once in power, they focused on restricting abortion rights, passing hundreds of laws and imposing a smorgasbord of new restrictions. They have controlled both chambers of the legislature in more than half of US states ever since. Once in power, Republicans focused on keeping themselves there, democracy be damned. They scaled up efforts to restrict voting rights, carefully calibrating their laws to decrease Democratic turnout – that is, to make it harder for people of color to vote. They used whatever power they had to deliver for their constituents – not stuff like healthcare or poverty alleviation that people might actually need, but the culture war stuff that satisfied a punitive desire to screw over perceived enemies. Democrats, on the other hand, made endless compromises. When supreme court justice Antonin Scalia died in 2016, Barack Obama was still the president, and he had the right to appoint a judge to fill Scalia’s seat. The Republican Party, though, had control of the Senate and blocked him, claiming that, because it was an election year, the American people had the right to pick the president who would pick the next Supreme Court judge. They did not apply this same rule to themselves just four years later, when Trump was in the same position – he appointed Amy Coney Barrett to replace Ruth Bader Ginsburg. And while some Democrats complained, they certainly did not play hardball; Sen. Dianne Feinstein even applauded Barrett’s speedy and illegitimate confirmation hearings. And Donald Trump, of course, lost the popular vote; millions more American voted for Hillary Clinton. But, thanks to an Electoral College system kept in place despite its long-apparent flaws, the majority lost in 2016. We all know what happened next. In early May, a draft of the supreme court opinion to overturn Roe leaked to the press. It was a shock, but not a total surprise – supreme court watchers and reproductive rights advocates had been warning that this particular court was ready and willing to overturn Roe, and that they might use the Dobbs case to do it. But even with that heads up, the day the Dobbs opinion was published, Democrats seemed to be caught flat-footed. Democrats offered poems and made fundraising pleas. They asked us to vote – even though we did, in huge numbers, in 2016 and 2018 and 2020; even though three million more Americans voted for the Democratic nominee in 2016 than the Republican one. Only a small handful of Democrats, led most notably by Elizabeth Warren and Alexandria Ocasio-Cortez, suggested anything even remotely resembling an innovative response. And even they seemed to be coming up with it on the fly. The unfortunate reality is that there is no immediate perfect solution for the problem at hand. The supreme court has struck down basic rights for women, giving conservative states enormous control over women’s bodies. Even a federal law codifying Roe is vulnerable to Republican takeover, and tricky to pass given the current make-up of Congress and the fact that the slim Democratic majority in the senate includes conservative Democrats Joe Manchin and Krysten Sinema. But that doesn’t mean there is nothing Democrats can do. Joe Biden, for example, could make securing abortion rights for as many women as possible his number-one priority; he could rescind federal amendments that limit abortion access; he could give permission for clinics to open on federal lands; he could go to the mat for medication abortion availability; he could be clear that he will expand the court and end the filibuster. Instead, he’s setting off on a national tour to remind Americans that they think he’s to blame for inflation. Voting for Democrats matters. One problem that Democrats are currently facing is that they simply don’t have enough of a majority to get done what their base wants, and they have two feckless narcissists with Ds next their names who are hampering the party’s agenda. The midterms matter; more Democrats in office means more opportunities to pass laws that protect women and human rights more generally. But that doesn’t mean Democrats powerless now, or that they have any right to pin the blame on voters. At the very least, Democrats should take a look at what has happened since 2001, and recognize the situation for the emergency that it is. Most of the conservative judges on the court – most of the judges who just overturned Roe v. Wade – were appointed by presidents who initially lost the popular vote but took office anyway. This has happened twice in just 20 years. Abortion rights and democracy go hand in a hand. A nation is not democratic if half of its population do not have basic rights, let alone equal rights. As the US faces a series of crises of democracy, from an attempted coup to a hostile takeover by a reactionary minority to an unprecedented rollback of civil rights, there is a straight line that runs from Bush v Gore to Dobbs v Jackson Women’s Health. Democrats can’t fix the past. But the least they can do is learn from it – and change course accordingly.

In short, the libertarians advancing the false distinction between “common law property in land” versus “statutory IP rights” are misstating what it means when we all say that the Anglo-American property system is rooted in the “common law.” In the technical sense of this term, the Anglo-American property system is a common law system insofar as courts have developed the law and the rationale for their decisions without having to validate these decisions by reference to a particular statute. This is in contrast to the “civil law” system in Europe, in which all judicial decisions must ultimately refer back to a statute as the validating source of the judicial decision itself. But to say that the Anglo-American property system is a “common law system” does not mean, of course, that there weren’t statutes that were interpreted, applied and extended by courts, and as a straightforward historical fact there were many statutes enacted by Parliament that defined the foundational rights in Anglo-American property law. The fact that statutes weren’t mandated by the Anglo-American legal system as an institutional requirement for valid court decisions does not mean that statutes did not play a substantial historical role in the creation and enforcement of property rights in land.

In sum, it’s a complete myth for libertarians to argue that IP rights are “different” from property rights in land because property rights in land developed in “common law” as opposed to “statutory” IP rights. But it’s even worse than a myth, because this is not a false claim made in the ivory tower in a dispute between academic historians. Rather, this false historical claim is asserted in the policy debates today to advance an anti-IP agenda. Thus, it’s important to call out this misleading historical myth, as it’s being used to leverage misleading attacks on copyright and patents. I don’t mind engaging in bracing public policy debates about whether IP rights are right or wrong — I love these debates, especially with people who share my own commitment to free market principles — but let’s at least get the basic historical facts correct in these debates. These are facts that are not in dispute and are well known, including even to the libertarians who survived their 1L Property classes in law school and are now speaking on these issues in the academy and in think tanks.

Article II of the Constitution grants the legislative branch the power to create law."o0 Despite Congress's monopoly on law making, scholars have theorized that the other branches of government can engage in a dialogic relationship with Congress."' Inter-branch dialogue permits the nonlegislative branches to express criticism or skepticism over Congress's decisions, spur Congress to action in areas in which a particular branch has an acute interest, and help shape the power of the nonlegislative branches in light of Congress's singular ability to define that role. Congress's dialogic relationship with the courts is somewhat different with regard to patent law. Because of the existence of a specialized appellate court in the area, Congress can defer some policy-like decisions to the Federal Circuit. As Part II of this Article demonstrated, during passage of the ALA, Congress crafted reform legislation to remedy problems in the patent system.so4 Those legislative proposals were often intended to spark a dialogue between Congress and the courts. Of course, Congress and the Federal Circuit did not engage in discussion over every issue in the patent reform proposals. Many other elements of the legislation were passed without Federal Circuit response, such as changes to the joinder rules in patent cases.06 Tellingly, however, many of the changes that Congress did enact were directed at aspects of the patent system over which the Federal Circuit has little or no control. For instance, Congress changed the U.S. patent system from a first-to-invent system to a first-to-file system, a change that could only have been made by statute. Similarly, the creation of post-grant administrative procedures at the USPTO is not something that the Federal Circuit could have created without congressional action. Why is Congress's dialogue with the judicial branch unique when it comes to patent law? The answer lies largely with the Federal Circuit's uniqueness among the Federal judiciary. Congress created the Federal Circuit with an eye towards enlisting the court in some policymaking functions. It is not surprising therefore, that Congress views the court as an institutional policymaker, despite the court's reluctance to overtly assume that role for itself. Nor is it surprising that Congress is comfortable playing an initial catalytic role in policymaking. In fact, allowing the Federal Circuit to shape doctrinal patent reform can free Congress to focus on administrative, procedural, or other types of reform measures."For example, during the ALA's legislative process, the Federal Circuit's doctrinal changes to thorny issues such as damages allowed Congress to pass reform measures that substantially altered the administrative proceedings of the patent system." Furthermore, Congress is more likely to play a catalytic role in patent reform because the Federal Circuit is particularly cognizant of legislative proposals on patent law. Unlike the work of generalist courts, the work of the Federal Circuit is significantly impacted by legislative changes in a single area of law. Judges on generalist appellate courts will only rarely be impacted by any particular legislative change, and are therefore only mildly affected by any particular piece of legislation. However, over one-third of every Federal Circuit judge's caseload is made up of patent cases, and those cases tend to take up an outsized portion of the judges' time and attention.1 It is thus predictable that the Federal Circuit monitors the legislative machinations on patent reform. The court likely will continue to monitor future developments with equal interest and respond to suggestions made by Congress.

A last possible objection is also perhaps the strongest, since it looks to the practical side of pragmatic incrementalism. This is that the defense of pragmatic incrementalism in common law intellectual property pays insufficient attention to the problems associated with looking to courts for rule generation. These shortcomings are said to derive from: (1) questions of judicial competence, whether judges are capable of making the policy decisions that intellectual property law demands; and (2) the problem of dividing responsibility between judge and jury in the adjudicatory process, an enduring problem of the adjudicatory process. The analysis below examines each issue and its significance for intellectual property as it relates to some of my previous claims about pragmatic incrementalism. The argument from competence has two parts to it. The first is the claim that since common law intellectual property tends to be state law, state courts may not be as well equipped and competent as their federal counterparts, given that a large number of states appoint judges through elections or other political processes. 253 This objection is of limited significance for my claim here, since as noted before, nothing in my defense of pragmatic incrementalism ties it to state courts.2 54 Indeed the broader normative goal of the project is to have federal law (and courts) internalize some of the methods that state courts developed and routinely apply. We may therefore move on to the second part, which is the more generic claim that courts, whether federal or state, are less competent than legislatures or indeed administrative agencies in dealing with matters of a specialized nature, of which intellectual property law is clearly a subset. The claim that specialization and complexity necessitate less judicial involvement is hardly true of a host of other areas. Tort law, antitrust law, and several other areas exhibit similar levels of complexity, and yet have for ages been handled and developed principally by courts. This is no less true of intellectual property law in general, where generalist courts have always arbitrated disputes and on occasions moved the law along incrementally. Additionally, the intellectual property system's one experiment with a specialized court for patent law has hardly been a runaway success, with many questioning the wisdom behind allowing a specialized court to develop its jurisprudence independent of the general corpus of law and legal reasoning that applies to other areas. 255 When complexity is indeed an issue, and requires the input of experts from different disciplines, the answer may lie in fostering a greater role for administrative agencies in the lawmaking process, to collaborate with and inform judicial rule development. The role of the Federal Trade Commission ("FTC") in developing antitrust law might in this context represent a model to follow. 2 56 Antitrust law, much like common law intellectual property, is principally the creation of courts through the common law process. Yet, the FTC issues guidelines, studies, and instructions on different areas and industries, to which courts routinely look (and often defer) in their analysis and development of the law.2 5 7 The answer may thus lie in more agency involvement rather than attempting to take the primary task of lawmaking away from courts and handing it back to legislatures. As this argument has emphasized throughout, adopting pragmatic incrementalism as an approach to lawmaking does not necessarily entail abjuring all reliance on legislation. Indeed the common law regimes discussed previously have come to reflect that reality, with many of them now being codified in different forms. The answer thus lies in a collaborative lawmaking exercise, with legislatures or agencies providing concrete, specialized rules when needed, and courts having a greater say in developing parts of the law that are best suited to incremental antifoundational development. Indeed, as some have argued, a similar collaborative model existed early in the development of copyright law, before the system turned entirely to statutory reform for solutions.

Governance of creative and innovative resources through intellectual property rights (IPRs) requires multiple interdependent institutions coordinating and channeling decisions on the use and allocation of resources. As IPRs are fundamentally private rights, the rights can only be fully operational if both the market for goods embodying IP and the markets for the exchange of the rights themselves are in place without much interferences from the regulators. Moreover, as IPRs are created by the law, the legislature delineating the scope of rights and the administrators that examine and grant the rights are crucial parts of the institutional foundation of the IPR system. Additionally, an independent and neutral judiciary that impartially reviews administrative decisions and enforces private rights plays a crucial role in the efficient governance through IPRs. These institutions are interdependent. Thus, reform in one area necessarily affects the functioning of the others. At the end of 2014, China introduced new specialist intellectual property (IP) courts. Although China had IP tribunals within the People’s Courts, the judicial reform to establish separate IP courts was touted as the significant step in embedding the rule of law in the governance of IPRs in China. This is not surprising considering that an independent judiciary is the central institution for rule of law. Such an institution affirms and enforces private rights and provides necessary impartiality to the process of decision making among the peer institutions. Understanding judicial reform as part of a bigger institutional reform in China requires institutional comparison. China has recently undergone several legislative reforms which have amended substantive IP law. It is not surprising that this was followed by reforms in both the administrative and the judicial branches. Introducing a specialized court with exclusive jurisdictions is likely to affect institutions that have similar competence to decide on matters, such as general courts or administrative tribunals. An institutional choice significantly affects the outcome of decision making because the processes of decision making by each institution differs and each institution also involves different stake holders. Often, institutions move together and a change in one is likely to cause change in another, even without explicit effort to affect such changes. Therefore, any institutional reform project needs to include measures to contain or coordinate unintended consequences or impacts on other institutions resulting from such changes.

In recent years there has been a substantial amount of debate surrounding the question of whether or not the court system is the appropriate mechanism to resolve intellectual property disputes. The increasing complexity of the intellectual property disputes- in particular patents- have necessitated the use of expert witnesses to explain often incomprehensible technical aspects to judges, and juries alike. The intention of the experts is to teach these individuals, within a short space of time, aspects of science and technology that have taken seasoned experts, in the relevant field, years of study to understand and master. 6 The plaintiff and defendant are then required to trust that the court has sufficiently understood the evidence to give a correct order or verdict. These orders have far reaching economic implications that may not only affect the parties involved but, depending on the market share and size of the companies or individuals involved, may also affect hundreds and thousands of employees and consumers worldwide.7

The TRIPS Agreement was one of the first attempts at the international harmonisation of intellectual property law. The TRIPS Agreement created a minimum set of obligations that Member states needed to institute in order to be in compliance with the Agreement- one of these being that Member states must ensure that there are enforcement procedures available for intellectual property right holders.8 The TRIPS Agreement, however, does ‗not create any obligation to put in place a judicial system for the enforcement of intellectual property rights distinct from that for the enforcement of law in general...‖.9 The Agreement thus allows Member States the discretion to decide on a judicial system that is in line with their national policy or judicial system.10

The Federal Circuit’s decision to expand the scope of a judge-created rule for invalidating certain patents may impact nearly half of US patents and is likely to cost US biopharma and technology innovators billions of dollars. For these reasons and others, the US Supreme Court should take up and reverse In re Cellect, preserving statutory guarantees.

In re Cellect diminishes the intent of Congress and undercuts its decision to fundamentally alter the US patent system in 1994 to align it with the rest of the world. Congress changed the starting point of a patent’s term to 20 years from when an inventor filed a patent application, rather than 17 years from the time the patent was granted.

Even without the problem of a multi-jurisdictional dispute, litigating patents in the court system can be time consuming and expensive. Courts are pressured to deliver timely judgments. At the same time masses of evidence and rigid procedures mean that there is a limit as to how fast a case can progress. This is further complicated by the fact that in America juries are often used to consider issues of fact. Patent issues are often highly technical and may be difficult for most jurors to comprehend. As of 2000, about fifty percent of all U.S. patent cases were tried before juries. Evidence suggests that juries tend to favour patentees on validity issues more than judges. This perceived bias in the system may influence some companies to prefer litigation, but there are other important facts to consider as well. Firms that are financially better off than their rivals may opt to litigate in order to intimidate smaller firms that may not have the resources to engage in a protracted legal struggle. Indeed, there may be no overt threat, but a clear financial imbalance would likely cause the weaker party to question the effectiveness of litigation. Evidence of this observation is difficult to quantify, but some authors have suggested that patent arbitration usually takes place between companies of similar financial standing. Crosslicensing relationships may suggest a relative parity in economic terms. As an example, the National Patent Board was founded by large U.S. firms to replace litigation with ADR. With these considerations in mind, some authors have called for compulsory arbitration of patent disputes. While this may be an extreme contention, arbitration could be appreciated as-if not leveling the field of play-at least putting the variables within the control of the parties to the dispute.

In contrast to China’s gradual strengthening of IP protections, the United States has seen the robustness of its IP system steadily erode.

Much of this erosion comes from three changes to the U.S. patent system made over the last two decades. First, in the 2006 case eBay v. MercExchange, the Supreme Court weakened patent owners’ ability to receive legal injunctions blocking the sale of their patented technology by an infringer. While injunctions are still available, they are now sought and granted significantly less often. The decreased threat of an injunction may create perverse incentives that cash-rich firms can exploit, such as “efficient infringement,” where the benefits of patent infringement outweigh the costs of defending against and even losing a lawsuit.

Raymond J. Lohier: I don’t dispute at all the caveats that Jeff mentioned, about, for example, the counter-majoritarian role of the courts, and also about polls generally. But I do worry. One reason that I think we should all worry about a loss of confidence and support in the courts, or even a reported loss in confidence and support, is that — this is almost cliché — but we really have nothing other than public confidence to protect the branch.

I do think that we should pay attention when there’s any indication of flagging confidence or support in the judiciary. What’s important in my view is that there has to be at least the perception of some connection — and a judicial appreciation that there must be a connection — between the public and the Court, between what the public expects, broadly speaking, and how the Supreme Court and courts of appeals and the district courts rule, and how we justify or explain our rulings.

Congress and the Supreme Court have been significantly at odds over intellectual property law throughout the early twenty-first century. This institutional fracture is revealed here in an original dataset comprising every Supreme Court decision and statute passed by Congress concerning intellectual property law from 2002 to 2016. Though the divergence between legislative and judicial action has largely slipped below the radar, it speaks volumes about the contemporary political economy of intellectual property law. Analysis of this legal activity also raises questions concerning interbranch separation of powers and majoritarian democracy, questions that spread well beyond intellectual property.

Recent legislative and judicial actions concerning intellectual property law reveal several stark trends. Congress has been remarkably hospitable to stronger intellectual property rights. Congress passed forty-three intellectual property laws during the time period in question. Of those that affected the substantive strength of intellectual property rights, over 80% made rights stronger.1 These laws made it easier to acquire intellectual property rights, broadened the scope of protection, and strengthened enforcement. The Supreme Court’s intellectual property jurisprudence, however, has moved largely in the opposite direction. The Court decided forty-four intellectual property cases from the October 2002–2003 Term through the October 2015–2016 Term, and of those that substantively affected the extent of rights, two-thirds weakened protection.

Nonetheless, as so often is true in law, the devil is in the definitions. I view these examples inherent in the jurisprudential process as a far cry from the kind of "policy" that some would have this court make. The policy that I believe a court has no power to make is that which asks established law to give way in the face of a current social goal deemed more "important"-based on an argument that a felt necessity should trump existing principles because they are old and threadbare, or because the legislature never imagined such a new and different set of facts. It is then that we judges should be most cautious about doing our job, and only our job. If we do it right, the "policy" we search for and apply will always be someone else's-not our own. It is important to emphasize, moreover, that, to the limited extent that policy creeps into judicial decision-making it does so only where gaps in the law are substantial and uncharted. For example, there is certainly a body of case law where courts over the years have been forced to determine what the words "cruel and unusual punishment" mean3 or what is "unreasonable" in the search-and-seizure context.' Those phrases in the Constitution are broad and somewhat vague, perhaps intentionally so. But where, as with the Patent Act, Congress has put together a statutory scheme with a fair measure of specificity, there are far fewer gaps in the law to fill. Instead, judges are to apply that law as written, regardless of whether they think Congress's choices make sense or would match their own choices if given the flexibility to make them. Where gaps in the law exist, moreover, judges do not have the right, nor would they presume to have the right, to make policy choices that differ from those well established by the Supreme Court and governing precedent. Thus, judges in lower courts today can readily apply the Eighth and Fifth Amendments to the facts before them with little struggle, not because the textual phrases are any less broad or vague today than they were originally, but because their confines are now well defined by common law rules. Applying this concept to patent law, because the Federal Circuit decides patent cases in the context of a comprehensive statutory scheme, fairly well established precedent, and in light of governing written documents, those marginal cases where policy choices need to be made should be few and far between. And, again, at the risk of being redundant, to the extent made, any policy choices courts make must not be our own.

“The policy that I believe a court has no power to make is that which asks established law to give way in the face of a current social goal deemed more "important" -based on an argument that a felt necessity should trump existing principles because they are old and threadbare, or because the legislature never imagined such a new and different set of facts. Paraphrasing only slightly the Supreme Court's own admonition in Parker v. Flook, I said, "[i]t is our duty to construe the patent statutes as they now read, in light of our prior precedents, and we must proceed cautiously when asked either to extend or contract patent rights for reasons unforeseen by Congress." Given that theme, on which I elaborated in greater detail and with citations to authorities far more influential than I, I assumed I would never again be asked to address this Conference-one whose expressed purpose is to discuss ways in which some believe courts could, and indeed should, engage in the very policymaking I had eschewed. So, you can imagine my surprise when my good friend, Professor Peter Mennell, asked me to open this year's version of this Conference. My first thought was that, since the University of California Berkeley School of Law was not the co-sponsor of the 2011 Conference, perhaps Professor Mennell did not know I had put somewhat of a damper on that earlier Conference with an out-ofthe-box pronouncement that the answer to the question the entire Conference seemed designed to probe was a pretty simple one, and not the one I guessed most in the room wanted to hear. So, as not to embarrass Professor Mennell, I assumed I should decline his invitation and let the Conference get off to a more optimistic start. But, I realized, however, that the Peter Mennell I knew was too fastidious not to have been aware of my earlier appearance and the content of my commentary, which meant that perhaps he believed I might have something new or different to add to the dialogue-perhaps even that my experience on the appellate bench had altered or softened my views. So I agreed to come, hoping not to disappoint. In reflecting on whether my years on the appellate bench have impacted my view of the judiciary's role with respect to the shaping of substantive patent law and policy, I realize that they have. They have not softened those views; however, my views have become more entrenched, as some of my opinions including dissents-may reflect. I have become especially concerned as I watch the number of times lawyers and parties urge both our court and district courts to either openly ignore what Congress has said, anticipate what Congress would have said if it had been able itself to anticipate changes in technology or the litigious nature of patent litigants, or reinterpret statutes in ways that appear more fair or more efficient than Congress's own words reflect. While trial and appellate judges certainly may participate in open dialogue about substantive changes needed in the law, and may in their decisions urge Congress or the Supreme Court to consider changes, we may not effectuate those desires on our own. When parties request that judges assume a substantive policy-making role in the face of otherwise clear decisional mandates, and judges accede to those requests, we weaken the judiciary itself. By not adhering to the structural limitations on the branches of government established by the Framers, we invite the same types of incursions on our own authority. However well-intentioned and however strong the policy urges, decisions that fail to voice that which Congress has said is the law risk weakening our own independence. I assume I do not need to remind anyone in this room that an independent judiciary is the very cornerstone of the freedoms guaranteed by our Constitution. As the Supreme Court said in Evans v. Gore, "the articles which limit the powers of the legislative and executive branches of the government, and those which provide safeguards for the protection of the citizen in his person and property, would be of little value without a judiciary to uphold and maintain them .. . ."9 As Alexander Hamilton said, if the independence of the judiciary is destroyed, "the constitution is gone; it is a dead letter; it is a vapor which the breath of faction in a moment may dissipate ... "10 In an age where court-bashing is common, we ought not to contribute to our own destruction. If we are unable to respect institutional boundaries ourselves, why should we expect Congress or the Executive branch to do the same?