Search the archive.

Elected leaders around the globe often take office with promises of driving growth through innovation. But deciding which policies to champion in order to achieve this goal can prove difficult. Nicholas A. Bloom saw the challenge firsthand when he served as an advisor in the UK treasury department in 2001. “Ministers get lobbied by endless firms, academics, and other politicians. It’s hard for them to conclude what works and what doesn’t, because each group only presents evidence favoring their own policy,” Bloom says. “I remember wishing there was some overview by an independent group based on actual research.” Nearly two decades later, Bloom, now an economics professor at Stanford School of Humanities and Sciences and by courtesy at Stanford Graduate School of Business, did exactly that. Along with economists Heidi Williams of Stanford University and John Van Reenen of the Massachusetts Institute of Technology, he came up with an evidence-based toolkit for governments looking to spark innovation. Research shows that innovation is the main driver of a country’s long-term economic growth. At the same time, companies in free market economies are likely to underinvest when it comes to research and development, Bloom says. That’s because an individual firm bears all the costs for developing a new solution, but competitors reap some of the benefits by either imitating the invention or waiting until a patent runs out. That’s where the government comes in. The Top Five Policies for Boosting Innovation Outlined in a recent paper in the Journal of Economic Perspectives, here are five policies that Bloom and his colleagues say can effectively drive innovation: 1. Offer Tax Incentives for R&D The research is clear: Government tax subsidies and grants are the most effective way to increase innovation as well as productivity. Studies show that reducing the price of R&D by 10% increases investment in innovation by 10% in the long run. The U.S. has one of the least generous tax credit policies among developed countries, only cutting the cost of R&D spending by around 5%. Countries like France, Portugal, and Chile are the most beneficent, slashing the cost of R&D spending by more than 30%. 2. Promote Free Trade Existing evidence suggests that opening trade can spark innovation by increasing competition, allowing new ideas to spread faster and dividing the cost of innovation over a bigger market. For example, researchers who summarized the findings of more than 40 papersopen in new window in 2018 concluded that freer trade generally increased innovation in South America, Asia, and Europe (results from North America are more mixed). This policy can bear fruit in the medium run and doesn’t cost much to implement, but can increase inequality. Quote Ministers get lobbied by endless firms, academics and other politicians. It’s hard for them to conclude what works and what doesn’t, because each group only presents evidence favoring their own policy. Attribution Nicholas Bloom 3. Support Skilled Migration Even if there’s more funding for innovation, you won’t see it unless you have more scientists to do the research. The most direct way to increase the supply of researchers is to allow more high-skilled immigrants into the country. One paper showed that increasing the population of immigrant college graduates in the U.S. by one percentage point increased patents per capitaopen in new window by up to 18%. 4. Train Workers in STEM Fields Another way to increase the supply of researchers in the long term is to invest in training them domestically. One option is to promote programs that boost the number of people studying science, technology, engineering, and math (STEM). Another is to expose more would-be inventors from disadvantaged backgrounds to role models and mentoring. 5. Provide Direct Grants for R&D Compared to tax incentives, government grants — often to university researchers — can target projects that are likely to have the most long-term benefits. Research shows that grants to academics in turn results in more patents filed by private firms. However, it’s tough to track the impact of grants, since it’s possible that private R&D funding would have stepped up in their absence. Other Strategies That May Boost Innovation Bloom and his colleagues found that three policies may go some way toward increasing innovation, but aren’t bolstered by much evidence. 1. Providing Incentives for University Researchers Some evidence exists that academics who retain full rights over their work are more likely to patent inventions and found startups. However, there’s not enough research to make this policy a priority. 2. Engaging in Intellectual Property Reform Debates continue to rage about whether certain systemic reforms, such as curbing “trolls” who buy patents just to go after supposed infringers, would improve innovation. The researchers conclude there’s no strong evidence tying a particular IP policy change to greater innovation. 3. Embarking on Mission-Oriented Projects “Moonshot” R&D projects focused on specific sectors have led to remarkable innovations, including NASA landing a man on the moon. The researchers point out that moonshots might be needed to innovate in response to pressing crises, like climate change. But proving their effectiveness is difficult, and funding is likely to be dictated by politics rather than the most beneficial technologies. What Not to Do There’s one policy the researchers squarely warn against: Establishing patent boxes. Patent boxes involve taxing revenue based on patents at a lower tax rate than other corporate revenues. Originally introduced in Ireland in the 1970s, the policy was in use in 16 developed countries as of 2015. Bloom and his colleagues conclude that these tax breaks don’t actually encourage R&D spending, but rather incite firms to move their patents around to different jurisdictions and distort the tax system. Falling Behind in Federal Funding for Innovation In the 1960s, the U.S. spent more on innovation as a share of GDP than any other developed country. Today, it spends 2.7% of GDP, still above average among developed countries but below Germany and Japan, and federal funding for R&D has declined relative to funding from private companies, which Bloom says has slowed economic growth in the U.S. “Businesses tend to focus more on short-term but lower economy-wide payoffs, whereas federally funded R&D tends to focus on big picture stuff that takes longer but pays off big time and benefits entire industries.” If policymakers in the U.S., or anywhere, want to double down on innovation policy, Bloom has one request: “I’d love it if they could just look at this toolkit first before meeting the lobbyists.”

Today, the Department of Commerce’s National Telecommunications and Information Administration (NTIA) awarded nearly $5.5 million in the first round of grants from the Public Wireless Supply Chain Innovation Fund. The $1.5 billion Wireless Innovation Fund supports the development of open and interoperable wireless networks as part of the Biden-Harris Administration’s Investing in America agenda. Open and interoperable wireless equipment will help drive competition, strengthen global supply chain resiliency and lower costs for consumers and network operators. “America’s continued leadership in wireless technology is critical to our economic competitiveness and national security,” said U.S. Secretary of Commerce Gina Raimondo said. “These investments in the next generation of wireless innovation will help create a more diverse and resilient marketplace and ensure that American companies and entrepreneurs, along with our allies, remain at the cutting edge of this crucial technology.” The shift to open and interoperable networks is vital for our national and economic security. The development of new, open-architecture approaches to wireless networks will help to ensure that future wireless equipment is built by the U.S. and its global allies and partners – not vendors from nations that threaten our national security. This first round of funding will support R&D and testing activities related to evaluating energy efficiency, measuring performance of interoperable equipment and testing methods for sharing spectrum. The funding totaled $5,482,052 and was awarded to projects at Northeastern University, New York University, and DeepSig Inc. Innovation Fund Director Amanda Toman announced the awards at an event with Northeastern University. “This first round of Wireless Innovation Fund awards will accelerate the transition to more open and resilient 5G and 6G wireless networks,” said Assistant Secretary of Commerce for Communications and Information and NTIA Administrator Alan Davidson. “These grants will fund important research and testing to catalyze greater adoption of open wireless equipment. This in turn will promote resilience, innovation, and efficiency in the mobile networks so important to our economy.” “At Northeastern, our research enterprise is relentlessly focused on impact in the world,” said David Madigan, Provost and Senior Vice President for Academic Affairs at Northeastern University. “This grant from the NTIA, made possible by the signing of the historic CHIPs Act, will be help us continue to pioneer critical research in wireless systems and networks, ensuring that the next generation of the Internet of Things will be a continuum of connected devices able to interact in new and exciting ways.” "This project seeks to develop testing and evaluation procedures for next-generation cellular wireless systems in the upper mid-band, a promising new frequency range that has attracted considerable interest from wireless carriers,” said Sundeep Rangan, Associate Director of NYU WIRELESS. “Systems in these frequencies will likely need to be adaptive and agile to utilize the wide bandwidth and directionally communicate. The project will investigate how this spectrum agility can be tested for both dynamic spectrum sharing and resiliency to attacks— two vital features of these bands." “DeepSig is honored to be a recipient of the NTIA's Public Wireless Innovation Fund,” said Jim Shea, CEO of DeepSig Inc. “Our effort will improve the performance and competitiveness of the Open RAN Air-Interface by leveraging DeepSig’s Generative Artificial Intelligence (AI) and tools for modeling and measuring the wireless environment under real world conditions. Developing new Generative AI tools for Open RAN will accelerate the adoption and performance of Open RAN for 5G, and future AI-Native 5G Advanced and 6G. We are excited to get to work!” Funded by the CHIPS and Science Act of 2022, the Innovation Fund will invest $1.5 billion over the next decade to support the development of open and interoperable networks. NTIA will make up to $140.5 million in grants available on a rolling basis from the first round of funding.

WASHINGTON – Today, the Department of Commerce’s National Telecommunications and Information Administration (NTIA) announced that up to $420 million in funding will be made available to build the radio equipment needed to advance open network adoption in the U.S. and abroad. This is the second Notice of Funding Opportunity (NOFO) from the Public Wireless Supply Chain Innovation Fund and this NOFO aims to drive commercialization and innovation in open radio units. Radio units, which sit at the top of cell phone towers to transmit and receive signals, are the largest and most costly part of the carrier network. Making more open radio units available is critical to spur open network adoption. “To secure our telecom supply chain, America and its allies need to build more innovative, affordable, and secure wireless equipment,” said U.S. Secretary of Commerce Gina Raimondo. “Thanks to President Biden’s Investing in America agenda, we are fueling the next generation of wireless innovation that will help ensure our national and economic security.” Funded by the CHIPS and Science Act of 2022, the $1.5 billion Wireless Innovation Fund that this NOFO comes from is a piece of the Biden-Harris Administration’s Investing in America agenda, aiming to drive wireless innovation, foster competition, and strengthen supply chain resilience. By supporting the development of open radio units, this second round of funding will help to ensure that wireless technology is built by the U.S. and its global allies and partners – not vendors from nations that threaten our national security. “This $420 million investment will help shore up our supply chain and create opportunities for companies from the U.S. and our allies,” said Assistant Secretary of Commerce for Communications and Information and NTIA Administrator Alan Davidson. “Open, interoperable networks will facilitate competition, make our supply chains more secure, and lead to lower costs.” This second round of funding targets two critical areas: Open radio unit commercialization: Accelerating the development of open radio units to the point where they meet the needs of wireless carriers and are ready for commercial trials; and Open radio unit innovation: Improving the overall performance and capabilities of open radio units through targeted research and development. NTIA expects to grant between $25 million and $45 million per commercialization award, and $5 million to $10 million per innovation award. Applications are due July 10. NTIA has already awarded more than $140 million to 17 grantees through the first Notice of Funding Opportunity. That initial round of investments is supporting testing research and development, and the establishment of testing and evaluation facilities. NTIA expects to start making awards from this second funding opportunity this fall. Visit the Round 2 (2024) Open RU page to find a link to the second Notice of Funding Opportunity. ### About the National Telecommunications and Information Administration The National Telecommunications and Information Administration (NTIA), part of the U.S. Department of Commerce, is the Executive Branch agency that advises the President on telecommunications and information policy issues. NTIA’s programs and policymaking focus largely on expanding broadband Internet access and adoption in America, expanding the use of spectrum by all users, advancing public safety communications, and ensuring that the Internet remains an engine for innovation and economic growth.

According to these activists and politicians, humanity is beset on all sides by catastrophes that could kill off civilization, and maybe even our species. Are they right?

Absolutely not, answers the longtime environmental activist Michael Shellenberger in an engaging new book, Apocalypse Never: Why Environmental Alarmism Hurts Us All. "Much of what people are being told about the environment, including the climate, is wrong, and we desperately need to get it right," he writes. "I decided to write Apocalypse Never after getting fed up with the exaggeration, alarmism, and extremism that are the enemy of positive, humanistic, and rational environmentalism." While fully acknowledging that significant global environmental problems exist, Shellenberger argues that they do not constitute inexorable existential threats. Economic growth and technological progress, he says, can ameliorate them.

The point is, we should treat immigration restrictions as time-limited responses to specific, articulable conditions, not as a default mode. To the extent that immigration might need to be restricted or regulated more closely in certain emergency circumstances, our concern must be to admit immigrants primarily on the basis of need, and the direness of the situation they will face if returned, not according to factors like nationality, wealth, education, or ability, which is how our U.S. system presently operates. All this, however, is the long game. We certainly can’t arrive at a more open immigration system overnight, and I think that there’s a hierarchy of intermediary policy goals that would alleviate some of the most unconscionable effects of our present system, while laying the groundwork for a future immigration system that looks entirely different. Here, I’ll outline several policy changes that would benefit immigrants who are already present in the U.S., and individuals who face serious dangers in their home countries. (Stay tuned for part three, which will deal with visa allotments, employment-based immigration, and admissions more generally.) Fiddly Legislative Fixes Given how messed-up our immigration system is on a large scale, it’s worth asking how much time we ought to devote to tinkering with the finer points of laws that we would be better off scrapping wholesale. Some people might say that these kinds of small fixes are a waste of energy, like rearranging the deck chairs on the Titanic. But I disagree. In a disaster of this scale, you want some of your people making repairs to the leaky lifeboats, and other people working to contact bigger rescue vessels, because who knows which avenue will prove more successful before the whole mess slides into the sea. What I mean by “fiddly legislative fixes” are legal changes that wouldn’t result in any immediate, sweeping changes to what categories of people are eligible for immigration relief: rather, they might slightly alter the boundaries of those categories, and also ensure that people who are eligible for immigration relief aren’t barred from getting it for reasons that are totally outside their control.

Over at The Atlantic, Ta-Nehisi Coates has been exploring the intersection of race and public policy, with a focus on white supremacy as a driving force in political decisions at all levels of government. This has led him to two conclusions: First, that anti-black racism as we understand it is a creation of explicit policy choices—the decision to exclude, marginalize, and stigmatize Africans and their descendants has as much to do with racial prejudice as does any intrinsic tribalism. And second, that it's possible to dismantle this prejudice using public policy. Here is Coates in his own words: Last night I had the luxury of sitting and talking with the brilliant historian Barbara Fields. One point she makes that very few Americans understand is that racism is a creation. You read Edmund Morgan’s work and actually see racism being inscribed in the law and the country changing as a result. If we accept that racism is a creation, then we must then accept that it can be destroyed. And if we accept that it can be destroyed, we must then accept that it can be destroyed by us and that it likely must be destroyed by methods kin to creation. Racism was created by policy. It will likely only be ultimately destroyed by policy. Over at his blog, Andrew Sullivan offers a reply: I don’t believe the law created racism any more than it can create lust or greed or envy or hatred. It can encourage or mitigate these profound aspects of human psychology – it can create racist structures as in the Jim Crow South or Greater Israel. But it can no more end these things that it can create them. A complementary strategy is finding ways for the targets of such hatred to become inured to them, to let the slurs sting less until they sting not at all. Not easy. But a more manageable goal than TNC’s utopianism. I can appreciate the point Sullivan is making, but I'm not sure it's relevant to Coates' argument. It is absolutely true that "Group loyalty is deep in our DNA," as Sullivan writes. And if you define racism as an overly aggressive form of group loyalty—basically just prejudice—then Sullivan is right to throw water on the idea that the law can "create racism any more than it can create lust or greed or envy or hatred." But Coates is making a more precise claim: That there's nothing natural about the black/white divide that has defined American history. White Europeans had contact with black Africans well before the trans-Atlantic slave trade without the emergence of an anti-black racism. It took particular choices made by particular people—in this case, plantation owners in colonial Virginia—to make black skin a stigma, to make the "one drop rule" a defining feature of American life for more than a hundred years. By enslaving African indentured servants and allowing their white counterparts a chance for upward mobility, colonial landowners began the process that would make white supremacy the ideology of America. The position of slavery generated a stigma that then justified continued enslavement—blacks are lowly, therefore we must keep them as slaves. Slavery (and later, Jim Crow) wasn't built to reflect racism as much as it was built in tandem with it. And later policy, in the late 19th and 20th centuries, further entrenched white supremacist attitudes. Block black people from owning homes, and they're forced to reside in crowded slums. Onlookers then use the reality of slums to deny homeownership to blacks, under the view that they're unfit for suburbs. In other words, create a prohibition preventing a marginalized group from engaging in socially sanctioned behavior—owning a home, getting married—and then blame them for the adverse consequences. Indeed, in arguing for gay marriage and responding to conservative critics, Sullivan has taken note of this exact dynamic. Here he is twelve years ago, in a column for The New Republic that builds on earlier ideas: Gay men--not because they're gay but because they are men in an all-male subculture--are almost certainly more sexually active with more partners than most straight men. (Straight men would be far more promiscuous, I think, if they could get away with it the way gay guys can.) Many gay men value this sexual freedom more than the stresses and strains of monogamous marriage (and I don't blame them). But this is not true of all gay men. Many actually yearn for social stability, for anchors for their relationships, for the family support and financial security that come with marriage. To deny this is surely to engage in the "soft bigotry of low expectations." They may be a minority at the moment. But with legal marriage, their numbers would surely grow. And they would function as emblems in gay culture of a sexual life linked to stability and love. [Emphasis added] What else is this but a variation on Coates' core argument, that society can create stigmas by using law to force particular kinds of behavior? Insofar as gay men were viewed as unusually promiscuous, it almost certainly had something to do with the fact that society refused to recognize their humanity and sanction their relationships. The absence of any institution to mediate love and desire encouraged behavior that led this same culture to say "these people are too degenerate to participate in this institution." If the prohibition against gay marriage helped create an anti-gay stigma, then lifting it—as we've seen over the last decade—has helped destroy it. There's no reason racism can't work the same way.

As a result, there is a growing realization that, without tangible alternativity, critical theory risks losing its normative impetus and its ethical and emancipatory commitment, potentially becoming a post-epistemological vocation without politics. Critical knowledge without a dose of alternativity may examine the causes and consequences of subject matters but could fall short of reaching out to the wider policy community and the affected subjects where power relations reside, thus missing the opportunity to transform the structural, discursive, and performative practices that reproduce violence, inequality, and injustice on human and nonhuman ecology. To bridge this epistemological gap, the analysis in the second part of this article examined how alternativity features in peace and conflict studies, a disciplinary field known for adding normative, empirical, and practical substance to critical IR debates. The analysis offered a conceptual scoping of three modes of critique and alternativity in peace and conflict studies. The three modes of critique showed that a conjunction between criticality and alternativity is possible and that it is necessary to renew the practical and emancipatory potential of critical theory in IR. The three modes of alternativity in peace and conflict studies expose a spectrum of different critiques, ranging from those perspectives that disengage completely from conceptual and empirical alternatives, to more pragmatic and prescriptive approaches.

Critique-without-alternative represents one strand, which tends to avoid offering normative and practical alternatives to their critical reflections aimed at maintaining the conservative and radical impetus of critical theory and dissociating from problem-solving and policy-relevant methods of inquiry. This mode of critique is committed to revealing the weaknesses of peacebuilding interventions but refuses to offer any emancipatory and practical alternative on how to build sustainable peace after violent conflict. If the end goal of critical perspectives is achieving emancipation, then critique should not only be directed toward problematizing dominant discourses, practices, and policies but also needs to envisage political and practical alternatives rooted in ideational and material elements. In turn, the lack of an explicit emancipatory agenda limits their social and political impact and unintentionally validates the existing order. In response to this challenge, a new mode of critique has emerged, namely, critique-as-alternative, which exemplifies the optimal approach. Proponents of critique-as-alternative have remained committee to critical analysis, but most importantly, they have taken up the challenge of offering emancipatory knowledge that has practical relevance for vulnerable societies in global politics. Their main flaw, however, has been their inability to elaborate sufficiently their practical and emancipatory alternatives—a flaw that has opened up space for epistemic contestation and policy co-optation. Finally, the third mode of critique—critique-with-alternative—which is embedded in a positivist, problem-solving, and policy-driven logic of inquiry, offers alternatives that seek either to verify existing knowledge and the existing interventionary order or to reject other critical alternatives.

While private property is treated as a personal right and has been recognized, in different forms, for millennia, intellectual property is a much more recent legal creation, whose existence is justified by a set of arguments that ultimately hinge on the balance. This is not the balance with empty pans held by Lady Justice, but a balance whose contents are dictated by the specific goals and justification of the law: balancing the interests of inventors with those of the public. Far from being construed metaphorically, this is a balance that ought to weigh evidence to find a just equilibrium. Should we think of it as a kind of instrument? And, if so, can it perform the balancing act that the law expects and requires?

The works of authors and inventors are of an unusual nature. The economists call them “public goods,” goods that are expensive to make but easy to copy, making them unlikely to be produced under normal market conditions unless special measures are introduced to make their copying illegal. Intellectual property law provides that. At the same time, while inventions and works of authorship are easy to appropriate, their appropriation, unlike theft, does not produce a loss of the original. Consequently, the law does not give inventors the same rights in their innovations that landowners have in their estates. As indicated by the limited length of patent and copyright protection, authors and inventors “own” their work in a significantly qualified sense, and to an extent that is limited by the opposing rights of the public. In Thomas Jefferson’s words: “[I]nventions […] cannot in nature be a subject of property. Society may give an exclusive right to the profits arising from them as an encouragement to men to pursue ideas which may produce utility. But this may, or may not be done, according to the will and convenience of the society, without claim or complaint from any body.”

With more than 60,000 employees, U.S. Customs and Border Protection, CBP, is one of the world's largest law enforcement organizations and is charged with keeping terrorists and their weapons out of the U.S. while facilitating lawful international travel and trade.

As the United States’ first unified border entity, CBP takes a comprehensive approach to border management and control, combining customs, immigration, border security, and agricultural protection into one coordinated and supportive activity.

Since its founding, America has had a leg up on other countries because of its willingness to think boldly and try new things. This was summed up by Supreme Court Justice Louis Brandeis, who in 1932 described how “a single courageous state may, if its citizens choose, serve as a laboratory, and try novel social and economic experiments without risk to the rest of the country.” From that was born the idea of states as “laboratories of democracy,” a practice that continues today.

For several decades, a collection of progressive states, counties and cities have conducted an experiment called sanctuary policies. Based on a preponderance of evidence, especially in the last few years, it is time to declare America’s experiment with sanctuary policies to be a complete failure and seek a better way.

U.S. Customs and Border Protection (CBP) was established in 2003 as an arm of the Department of Homeland Security (DHS). It combined agents from the U.S. Customs Service, the former Immigration and Naturalization Service and agricultural inspectors, who monitor the ports of entry, and the U.S. Border Patrol, who monitor the area between ports of entry. Today, CBP is the largest law enforcement agency within DHS, with more than 58,000 employees. As federal officers, CBP agents may only exercise the authority granted under federal statutes and regulations. This fact sheet provides a snapshot of search, interrogation, and arrest powers currently authorized under the law.

The challenges with implementing the federal programs have raised great concerns. Bowling and Pickerill discuss the challenges faced by states as the system of federalism our nation employs becomes less distinct.5 They note that as of 2012, the state of our federalism can no longer be designated as one specific type. This can be attributed by, “challenges at the federal level-the party polarization, the budget deficit, the level of tax increases and spending cuts required, and the inability of lawmakers to compromise,” which have then trickled down to subnational governments in the process.6 This fragmented federalism is especially prominent in education policy, as Bowling and Pickerill explain. The overlapping existence of No Child Left Behind, the No Child Left Behind waivers, Race to the Top, and the end of the American Recovery and Reinvestment Act of 2009 has led to great confusion. The lack of clarity in policy causes difficulty in determining the authority of the federal government and the states. One result of this fragmented federalism is the creation of state-specific policy. The inability of the federal government to offer more specific policy causes states to create policy catering to their needs. Recent education policies fall in line with the current period of coercive federalism, as federal policies seek to address the disparity in academic achievement amongst students of different socioeconomic backgrounds, formally known as the achievement gap. Traditionally, education has been the responsibility of state governments. However, reforms to the education system over the past two decades have placed greater authority in the hands in the federal government, largely evident through federal incentives programs and policies aimed to instate nation-wide academic standards.

The outline of this revised research agenda, begins by looking at a 1993 article written by Mark Graber challenging the countermajoritarian difficulty paradigm. Graber's observations point to the importance of studying systemic transformations, such as the evolution of judicial supremacy. Using historical case studies on abortion, the Dred Scott controversy, and anti-trust issues to study perceived incidents of judicial independence, he contends that scholars who seek to justify independent judicial policymaking, even in the face of believed democratic deficiencies, misunderstand and inaccurately represent the relationships between justices and elected officials. By looking at the dialogues between these parties it becomes apparent that judicial independence, when it actually occurs, is often exercised at the invitation of elected officials, and in the absence of any expressed majoritarian choice, in order to resolve political controversies that elected officials cannot or do not want to resolve themselves. Hence the counter-majoritarian difficulty can be more appropriately characterized as the “non-majoritarian difficulty.”33 According to Graber, where crosscutting issues divide a lawmaking majority an invitation [are] is often tacitly but consciously issued to the Court by political elites to resolve the political controversy that they themselves are unwilling or unable to address, thereby “foisting disruptive political debates off on the Supreme Court.”34 Graber writes that “elected officials encourage or tacitly support judicial policymaking both as a means of avoiding political responsibility for making tough decisions and as a means of pursuing controversial policy goals that they cannot publicly advance through open legislative and electoral politics.” 35 Furthermore, political and electoral advantages can accrue by ducking these tough questions and sending them on to be settled by the Court. Graber explains that elites (including the executive) can benefit from passing the political buck to the Court in multiple ways. Party activists can be redirected to focus on legal action in the courts, thereby reducing pressure on mainstream politicians who wish to maintain a more politically viable moderate stance. Voters can be redirected to focus any ire they might have over policy outcomes on the Court. Politicians can take responsive positions on judicial decisions that may make for a good sound bite but really require no politically accountable action on their part. Finally, political compromise between the legislature and the executive might be had under the table of Court policymaking. 36 This is an impressive set of political benefits that can stem from a practice of judicial supremacy that creates a Court equipped with the interpretive authority and legitimacy to make controversial public policies. Graber's article, then, highlights the perversion of political accountability that can possibly occur where everyone in the system, the public included, accepts and expects interpretive authority to reside with the courts.

The outline of this revised research agenda, begins by looking at a 1993 article written by Mark Graber challenging the countermajoritarian difficulty paradigm. Graber's observations point to the importance of studying systemic transformations, such as the evolution of judicial supremacy. Using historical case studies on abortion, the Dred Scott controversy, and anti-trust issues to study perceived incidents of judicial independence, he contends that scholars who seek to justify independent judicial policymaking, even in the face of believed democratic deficiencies, misunderstand and inaccurately represent the relationships between justices and elected officials. By looking at the dialogues between these parties it becomes apparent that judicial independence, when it actually occurs, is often exercised at the invitation of elected officials, and in the absence of any expressed majoritarian choice, in order to resolve political controversies that elected officials cannot or do not want to resolve themselves. Hence the counter-majoritarian difficulty can be more appropriately characterized as the “non-majoritarian difficulty.”33 According to Graber, where crosscutting issues divide a lawmaking majority an invitation [are] is often tacitly but consciously issued to the Court by political elites to resolve the political controversy that they themselves are unwilling or unable to address, thereby “foisting disruptive political debates off on the Supreme Court.”34 Graber writes that “elected officials encourage or tacitly support judicial policymaking both as a means of avoiding political responsibility for making tough decisions and as a means of pursuing controversial policy goals that they cannot publicly advance through open legislative and electoral politics.” 35 Furthermore, political and electoral advantages can accrue by ducking these tough questions and sending them on to be settled by the Court. Graber explains that elites (including the executive) can benefit from passing the political buck to the Court in multiple ways. Party activists can be redirected to focus on legal action in the courts, thereby reducing pressure on mainstream politicians who wish to maintain a more politically viable moderate stance. Voters can be redirected to focus any ire they might have over policy outcomes on the Court. Politicians can take responsive positions on judicial decisions that may make for a good sound bite but really require no politically accountable action on their part. Finally, political compromise between the legislature and the executive might be had under the table of Court policymaking. 36 This is an impressive set of political benefits that can stem from a practice of judicial supremacy that creates a Court equipped with the interpretive authority and legitimacy to make controversial public policies. Graber's article, then, highlights the perversion of political accountability that can possibly occur where everyone in the system, the public included, accepts and expects interpretive authority to reside with the courts.

First, the court said that the ordinary meaning of the word “increase” is “to make something greater,” which it believed should not “be limited to cases in which a company raises the rate that an individual has previously been charged.” 435 F.3d at 1091. Yet the definition offered by the Ninth Circuit compels the opposite conclusion. Because “increase” means “to make something greater,” there must necessarily have been an existing premium, to which Edo’s actual premium may be compared, to determine whether an “increase” occurred. Congress could have provided that “ad-verse action” in the insurance context means charging an amount greater than the optimal premium, but instead chose to define adverse action in terms of an “increase.” That def-initional choice must be respected, not ignored. See Colautti v. Franklin, 439 U.S. 379, 392-93 n.10 (1979) (“[a] defin-ition which declares what a term ‘means’ . . . excludes any meaning that is not stated”). Next, the Ninth Circuit reasoned that because the Insurance Prong includes the words “existing or applied for,” Congress intended that an “increase in any charge” for insurance must “apply to all insurance transactions – from an initial policy of insurance to a renewal of a long-held policy.” 435 F.3d at 1091. This interpretation reads the words “exist-ing or applied for” in isolation. Other types of adverse action described in the Insurance Prong apply only to situations where a consumer had an existing policy of insurance, such as a “cancellation,” “reduction,” or “change” in insurance. Each of these forms of adverse action presupposes an already-existing policy, and under usual canons of statutory construction the term “increase” also should be construed to apply to increases of an already-existing policy. See Hibbs v. Winn, 542 U.S. 88, 101 (2004) (“a phrase gathers meaning from the words around it”) (citation omitted).

During the past century, substantial resources have been invested in the politics and scholarship of regulation (see Figure 1).4 Nonetheless, the term “regulation” appears to escape a clear definition. 5 Although regulation has been one of the most controversial topics in law and politics, it has also been one of the most misunderstood concepts in modern legal thinking. The evasive nature of the term “regulation” is largely a product of confusion between two unrelated matters—the abstract concept of regulation and opinions about the desirable scope of regulatory powers or desirable regulatory policies. People intuitively understand the word “regulation” to mean government intervention in liberty and choices—through legal rules that define the legally available options and through legal rules that manipulate incentives. But too often, ideologies and preexisting beliefs dictate perceptions as to what intervention means and whether intervention is needed. This pattern results in inconsistent preferences for regulation and obscures the understanding of the term. It is not uncommon that individuals who express contempt of government regulation are proponents of intrusive regulation that serves their values,8 while individuals who advocate for government regulation reject notions of regulatory tradeoffs.9 The Supreme Court’s debate over the meaning of the phrase “to regulate” in NFIB illuminates the phenomenon.10 Scholars who grappled with the meaning of the term “regulation” produced various definitions for the meaning of intervention or followed the path of using their own personal beliefs to explain the concept, indirectly creating informal definitions. A few examples of the confusion between perceptions of regulation and the understanding of the concept as government intervention may be helpful. The legal concept of “regulation” is often perceived as control or constraint. For example, the definitive legal dictionary, Black’s Law Dictionary, defines “regulation” as “the act or process of controlling by rule or restriction.”11 Similarly, The Oxford English Dictionary defines “regulation” as “the action or fact of regulating,” and “to regulate” as “to control, govern, or direct.”12 To many people, “control” connotes “restrictions,” although control may have other meanings. Regulation often imposes no restrictions, but enables, facilitates, or adjusts activities, with no restrictions. Examples of such regulations include the supply of roads, health and emergency services, public education and public libraries, welfare benefits, reliefs to victims of natural disasters and bailouts to failed institutions. Such services directly influence (or “adjust”) conduct of individuals and firms. In the abstract, all government actions supposedly influence conduct of individuals and firms, but not necessarily directly. For example, activities related to national defense and foreign policy tend to have only indirect influence on conduct of individuals and firms.13 Lawyers frequently use the word “regulation” in reference to rules of administrative agencies. This habit tracks the executive branch’s terminology.14 For example, Executive Order 12,866, which requires federal agencies to engage in cost-benefit analysis when “deciding whether and how to regulate,” defines “regulation” as “an agency statement of general applicability and future effect, which the agency intends to have the force and effect of law, that is designed to implement, interpret, or prescribe law or policy or to describe the procedure or practice requirements of an agency.”15 This meaning of the word mirrors another common perception of the term “regulation,” but surely does not capture the entire spectrum of regulatory instruments. Much of our regulatory landscape does not originate in administrative agencies.16 Another common perception of “regulation,” or at least a popular reference to regulation, equates the concept with laws that serve interest groups.17 Economist George Stigler popularized this view, arguing that “regulation is acquired by the industry and is designed and operated primarily for its benefit.”18 Richard Posner offered a more refined version of this perception: “[R]egulation [is] a product allocated in accordance with basic principles of supply and demand . . . [and] we can expect a product to be supplied to those who value it the most.”19 But, of course, not all regulations serve industries.20 Even when the regulator is captured by industries, it is far from clear that lack of regulation would be better for the public.21 So what does regulation mean? We return to the starting point—the intuitive understanding of the word “regulation”: government intervention in the private domain or a legal rule that implements such intervention. The implementing rule is a binding legal norm created by a state organ that intends to shape the conduct of individuals and firms.22 The state organ, the regulator, may be any legislative, executive, administrative, or judicial body that has the legal power to create a binding legal norm. This general definition is broader than “restrictions,” “rules promulgated by administrative agencies,” “laws that serve interest groups,” and related common perceptions of the word “regulation.” [FOOTNOTE] For example, law made by courts—common law—is a traditional form of regulation. See Andrew P. Morrisss et al., Regulation by Litigation (2008); Regulation Through Litigation (W. Kip Viscusi ed., 2002); Richard A. Posner, Regulation (Agencies) Versus Litigation (Courts): An Analytical Framework, in Regulation vs. Litigation 11 (Daniel P. Kessler ed., 2010); see also Freedom Holdings, Inc. v. Spitzer, 358 F.3d 205 (2d Cir. 2004); Sanders v. Brown, 504 F.3d 904 (9th Cir. 2007); The T.J. Hooper v. Northern Barge, 60 F.2d 737 (2d Cir. 1932). See also Barak Orbach, Invisible Lawmaking, 79 Uni. Chi. L. Rev. Dialogues 1 (2012).

At the border, CBP is authorized to exclude, detain and/or seize imported merchandise that infringes federally registered and recorded trademarks and copyrights and/or is covered by an exclusion order issued by the U.S. International Trade Commission. CBP publishes annual statistics of intellectual property seizures at www.cbp.gov/ipr. This information includes the number of seizures, the domestic value, and the Manufacturer’s Suggested Retail Price (MRSP) of the goods.

CBP is domestic

U.S. Customs and Border Protection (CBP) is the primary federal agency responsible for securing America’s borders. This includes the protection of intellectual property rights, which guards against the infringement of U.S. patents, copyrights, and trademarks. CBP intercepts counterfeit and pirated goods that harm the U.S. economy and threaten the security, health, and safety of Americans.

Infringement of intellectual property rights through the illegal import and distribution of counterfeit goods harms the U.S. economy and can threaten the health and safety of consumers. U.S. agencies have undertaken various activities to enhance enforcement of intellectual property rights. For instance, U.S. Customs and Border Protection leads efforts to stop imported counterfeit goods at the border. However, the agency needs to do more to evaluate the results of its activities and determine if it should share additional information with the private sector.

Does U.S. Customs and Border Protection (CBP) have the legal authority to seize imported goods that were made with forced Uyghur labor?

Both CBP and the U.S. Department of Homeland Security (DHS) have asserted that CBP will use seizure and forfeiture as tools for enforcing the Uyghur Forced Labor Prevention Act (UFLPA), a trade law enacted in 2021 to ban the importation of goods made wholly or in part in China with forced Uyghur labor. On careful review, the assertion does not hold up. U.S. customs law does not provide CBP any clear legal basis for seizing and forfeiting imported goods made with forced Uyghur labor.