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Many patent pools offer important cost savings to their members. These savings include access to shared patent rights, immunity from challenges to patent validity, and joint funds to offset litigation and patent prosecution costs. The desire to lower costs may explain why patent holders voluntarily join licensing collectives that offer limited control over royalties, and in some cases, no royalties at all.

Nine institutions examined in this study were not structured to collect or to distribute royalties to patent holders. Instead, these groups were formed purely to reduce the risk of patent infringement litigation by requiring each member to provide every other member a royalty-free license to its covered patent rights. As one would expect, these agreements were formed by companies that were both licensors and prospective licensees — that is, they manufactured potentially infringing products but also held patents of their own.

Some standards-based patent pools have adopted more complex formulas to discourage such behavior. For instance, the RFID patent pool alters the pro rata formula such that “half of the royalties are allocated to participants based on the number of patents contributed by each participant, and the other half are allocated substantially equally among participants.” By hinging fifty percent of all royalties on the pure number of members within the group rather than the number of patents within the group, this hybrid approach could limit strategic patenting behavior. However, this formula arguably results in an even cruder division of royalties than a purely pro rata formula.

A second type of formula adopted by some groups gradually apportions fewer royalties to patents over time. The DVD patent pool, for instance, allocates royalties to patent holders on the basis of how old their patents are. According to the group’s organizers, this formula was selected to encourage contributors to license new and valuable patent rights to the collective. This approach seems to assume that older patents are always less valuable than newer ones. As such, graded royalty sharing, like pro rata distributions, appears as a rough-and-ready approximation of patent value.

Corporate issuance of dividends is a second mechanism that has been adopted to apportion royalties within patent pools. Fifteen patent pools identified in this study were corporations that acquired full ownership of patents held by their members in exchange for stock that periodically yielded dividends. Unlike the ex ante bargains described in the foregoing Part, these share-based groups were capable of directing a portion of their profits to the contributors of after acquired patent rights. However, the decisions that governed the royalties that such patents earned — e.g., the amount of stock to be offered to an inventor in exchange for a patent, the amount of a given dividend distribution, the timing of dividend distributions — were made by officers of these organizations, and not by shareholders. As a result, these share-based groups were not truly platforms or forums for collective patent valuation.

The Pneumatic Steel Corporation, a steel patent licensing group formed in the late-nineteenth century, illustrates the share-based design. The group was born from a dispute: In the late 1850s, two American investor groups acquired patent rights to the “Bessemer process” — a breakthrough in steelmaking technology. One group of investors held patents developed by Sir Henry Bessemer, the original inventor of the process. A second group held a blocking patent derived from experiments with related processes.

B. A Proposal for the Recording of Patent Pooling Agreements This Article’s findings show that private institutions have long had a significant and largely unappreciated impact on innovation incentives and returns. However, as explained in Part II, policy efforts to reform the patent system have generally focused on the institutions that define it — namely, the PTO and the Federal Circuit. In order to better encourage innovation, future patent reform efforts should be informed by the role of private institutions. To that end, I propose that Congress enact legislation that would mandate (or alternatively, encourage) the recording of patent pooling agreements with a federal agency. Patent pools are changing the rules of innovation. Our patent system is premised on the theory that innovation is encouraged by offering inventors limited monopoly pricing power. However, this study has shown that patent holders are increasingly ceding this power — sometimes in whole and sometimes just in part — to gain membership to private licensing communities. In some industries, joining such groups may be a necessary prerequisite to providing certain services or products. Consequently, the incentive to innovate is increasingly defined by private rules. Because collective patent agreements are usually private, the impact of collective action on innovation has been poorly understood. As this study has shown, the realities of collective governance are far more varied and complex than theorists have appreciated. Some patent pools are focused on lowering the cost of producing existing products. Others hold no promise of royalties but deliver important cost savings. Some patent pools may be capable of encouraging innovation, but through rough-and-ready rules rather than carefully tuned voting regimes. These insights come only from records that could be located; the true number of patent licensing collectives that have existed in the past is unknown, as are the full number and nature of any such groups that operate in secrecy today. It is striking how much will remain unknown about the internal governance of these organizations in the future if the historical lack of public reporting continues. A new law designed to encourage the recording of collective patent licenses would be an important first step in redirecting policy efforts; such a law would inform policymakers of the total number of patent licensing groups that operate in various industries, and the institutional forms such groups have adopted. With the benefit of this information, policymakers would be better able to understand how collective action influences the incentive to innovate. This knowledge will be essential to crafting new policies that maximize innovation, economic prosperity, and social welfare. What would a patent agreement recording law look like? A congressional bill proposed nearly eighty years ago provides a good model. In January of 1935, H.R. 4523 was introduced in the House of Representatives with the title “A Bill Providing for the Recording of Patent Pooling Agreements and Contracts with the Commissioner of Patents.” The core of the bill required the following: That every agreement by which rights in a plurality of patented inventions are rendered subject to common ownership, control, or enjoyment, whether by assignment, license, or otherwise . . . shall be recorded in the Patent Office within six months from the date thereof. . . . That any change or addition in the parties or patents involved in the agreements recorded as hereinbefore provided and any changes in the provisions of such agreements shall be fully set forth and duly recorded in the Patent Office within three months of the date thereof. Had this law been enacted, it would have imposed civil penalties on any person or organization that failed to comply with its provisions. However, the bill did not provide details on how compliance would be monitored. During the winter and spring of 1935, a special Committee on Patents investigated the possible usefulness of H.R. 4523 by interviewing a wide spectrum of patent holders — from some of the largest corporations in the country down to individual inventors. The Committee observed that some patent pooling arrangements are “beneficial . . . to the general public welfare,” while others are used to carry out “secret and sinister [goals] . . . prejudicial to public interest.” In its final report, the Committee concluded that “the recordation of such agreements in the United States Patent Office, and in the Federal Trade Commission would seem to be the best method of preventing such secret and sinister operations.” However, for reasons that are unclear from the legislative history the bill never advanced beyond the committee stage. If introduced today, a bill modeled on H.R. 4523 would solve several problems. First, and most importantly, such a law would provide much-needed information to policymakers. As mentioned earlier, patent reform legislation efforts have largely focused on the institutions that apportion patent rights. Patent pools, the internal structure of which is often unknown, redefine these rights in several respects. If policymakers are to make intelligent decisions, it seems they must have a clearer understanding of the impact of these private regimes. A second positive outcome of this proposal relates to its impact on contracting behavior. If such a law made patent pooling contracts available to the general public, it could indirectly place public pressure on patent holders to form pools that are forward-looking by design. By the same token, the new law would also discourage restrictive pooling agreements that slow the pace of innovation (to the extent such pools are not already prohibited by applicable antitrust law). While the foregoing reasons show why a bill like H.R. 4523 could very well gain the necessary political goodwill to be enacted into law, large patent holders might oppose a law that mandates the recording of private agreements. Thus, a gentler approach may be needed. The National Cooperative Research and Production Act (“NCRPA”) — a federal law passed in 1984 — provides a model for a more moderate approach. The law offers reduced antitrust penalties to research consortia that inform the DOJ and the Federal Trade Commission of their operations. An attorney with the DOJ who commented for this Article explained that “although the law does not require consortia to file their membership agreements under the Act, many do so in hopes of receiving favorable business reviews from the Department of Justice.” Thus, the NCRPA encourages the recording of research agreements with a carrot rather than a stick. A patent agreement recording law would do well to adopt a similar design. Drafters of a patent agreement recording law would have several important factors to consider. First, they would need to decide whether to mandate or merely encourage the recording of collective patent agreements. While a mandatory recording law could yield the most information, it might also face the greatest opposition from certain constituencies. Moreover, a mandatory recording law could spur collaborators to search for paths to cooperation that do not involve formal contracts (e.g., non-assertion pledges). This wasted activity would represent efficiency losses. For this reason, lawmakers might prefer a gentler approach that mirrors the NCRPA’s reductions in antitrust penalties in return for compliance. Compliance could also be encouraged through novel incentives such as an expedited review of patent applications submitted by members of participating organizations.

Second, lawmakers would need to decide where recorded agreements should be submitted and who would have access to them. Two prime choices are the DOJ and the PTO. The DOJ already reviews similar agreements in connection with requests for antitrust business review letters and agreements submitted in connection with the NCRPA. Moreover, if the bill proposed here were to offer a reduction in antitrust penalties, it would fall squarely within the DOJ’s purview. Thus, the DOJ appears to have a strong existing framework for receiving and analyzing patent pooling agreements. By contrast, the PTO could be a good custodian for different reasons. Unlike the DOJ, the PTO has a long history of receiving, reviewing, and storing vast collections of patent-related information. From this perspective, it could make sense for the PTO to collect related patent pooling agreements. The PTO has also long published periodic reports on patent application filings and grants. A new avenue of business for the office could be the publishing of reports on the number and nature of patent pooling agreements in operation across the country. The PTO’s institutional competency and internal resources could thus make it a strong choice for overseeing the collection of patent pooling agreements. The very existence of the NCRPA and H.R. 4523 indicates that this proposal could be both useful and achievable. To be sure, like any legislative proposal, such a bill would probably face some opposition. The most vocal opponents would likely be those with the most to lose: companies that perceive strategic advantages in keeping their patent pooling operations secret. Moreover, policing and enforcing compliance with such a law could create new administrative costs. However, as explained above, a moderate approach that solicits rather than mandates the recording of collective patent licenses should quell such criticism. At the same time, lawmakers, experts, and many industry stakeholders might rally in support of a law that would shed light on the transformative but often hidden practice of collective patent licensing.

This paper explores empirically the interplay between patent pooling and litigations using data on 1564 United States patents belonging to eight modern I.C.T. pools and to a control database with patents having the same characteristics. First, our analysis makes it possible to highlight that pool patents are more litigated than non-pool patents presenting the same characteristics. Second, we underline that the difference in the likelihood to be involved in an infringement case, with the patent holder as plaintiff, is due to a pool effect per se, on top of the impact of the pool on the market size of the patent. Third, we explore several tracks that could explain this positive pool effect on litigations. We underscore that the patent inclusion in a pool, by reducing the uncertainty on the patent essentiality, facilitates dispute resolution by settlement. We also show that the pools’ size, as measured by the number of members, has a positive effect on the number of cases which could be due to a transmission of information between members. We emphasize and discuss such other factors that affect the incentives to litigate as the size of the firm and whether the patent holder is vertically integrated. From a public policy standpoint, our results underscore the need for a higher scrutiny of the real functioning of modern I.C.T. pools by the antitrust authorities.

Implementers of standard essential technology such as Long-Term Evolution (LTE) are constantly attempting to reduce costs for implementation. This behavior has led to certain inefficiencies in the marketplace, such as innovators not being compensated for their contributions to technological standards. The symbiotic relationship between innovators and implementers cannot continue where one side takes all the risk and the other side reaps all the reward. One construct put in place by innovators to extract compensation from the marketplace are patent pools that license patents that are declared essential for technology standards.

A Brief History of Pools

It is for this reason, and the fact that damages are paid by economic and monetary means, that a solution might be to invoke the enforcement power of the WTO as a last resort forum if valid adjudicated claims go unpaid and diplomatic avenues fail. As all space-capable countries are reliant on world trade to support their economies, and as much of the space arena is morphing into commercial and commercial-like transactions, the WTO would be a familiar forum for imposing measurable economic trade sanctions to punish the liable state, and in part would compensate the damaged state.21 Enforcement under these conditions is not reliant on voluntary payment, but the sum can be extracted by the international community. As in all standing tribunals, precedent would provide clarity of what is considered a violation and what the likely consequences would be for offending actions. Intentional offenses can have a “punitive damages” approach to increase the economic impact to the offending states. Additionally, as expertise and experience grow, the costs for even large egregious actions such as the 2007 China antisatellite missile test debris field might be calculated and placed as an economic threat to any nation contemplating such action. Conclusion Nations have gone a long way to identify and deter the weaponization of space. In short, the concerns over weaponization involve the potentially destructive nature of space weapons. It is impossible to define what constitutes a space weapon, and controlling an arms race based on definitions of what constitutes a weapon is doomed to failure with the exception of those weapons clearly posing a substantial risk to humanity, such as nuclear and other weapons of mass destruction. For all other concerns, we should attempt to regulate and control the destructive behavior of nations rather than attempting to limit their technology. It is how they use their technology that matters. We will never completely prevent countries from engaging in war. However, we can bolster peaceful dispute methodologies to prevent escalation of such conflicts and provide deterrence against aggressive or irresponsible behavior. Current international agreements do not offer an enforceable means of addressing claims for destructive activity, for while there is a forum for adjudication, participation and enforcement continue to rely heavily on diplomacy. A standing committee is needed to provide a credible, knowledgeable, and equitable forum for regulating, monitoring, and adjudicating claims and disputes relating to the damage caused by objects launched into space, whether they are designed for destruction or not. A logical place for this committee would be the United Nations. As current deterrence and enforcement of adjudicated claims currently rest solely in diplomatic, or in extreme cases military, channels, a third option is needed such as using the current economic deterrence and enforcement capability of the World Trade Organization to address and collect on unresolved adjudicated state liabilities.

One way to achieve better access to new medicines is patent pools, which allow third parties to acquire non-exclusive licences for the intellectual property needed to develop products. While patent pools have existed for several decades in other fields of technology, such as in digital technologies, they are a relatively new concept in public health, where they have been applied to address some of the access challenges in low- and middle-income countries.3

To improve access to antiretroviral treatment in low- and middle-income countries, Unitaid established the Medicines Patent Pool in 2010 as the first public health patent pool. Later, the patent pool’s mandate was expanded to treatments for tuberculosis and hepatitis C. The patent pool has negotiated most of the licensing agreements with pharmaceutical companies that have enabled competitive generic manufacture of antiretrovirals in low- and middle-income countries before patent expiry. These licences have also facilitated the development of new formulations that are particularly needed in resource-constrained settings, such as certain fixed-dose combinations and paediatric formulations. To date, the patent pool’s generic partners have distributed 22 million patient-years of treatment, allowing global savings of 1.06 billion United States dollars (US$), according to a biannual analysis undertaken by a leading auditing company.4

Gu cited how coronavirus pandemic outbreak took place in an era of globalization, where people, information and resources flow through a market-oriented global system. However, when a major infectious disease occurs and its enormous negative externality causes the market-oriented global trading system fail, there is an "urgent need" for a strong international governance body to step in, said Gu. Unfortunately, effective global leadership and global collective action has not emerged from this crisis, he added. For instance, The [WHO] World Health Organization, as the coordinating body for global public health, has not had the support of some of the major powers to deal with such a major global public health crisis, said Gu. Gu called the spread of this epidemic as a crisis of global governance, not a crisis of globalization" and that the aftermath of this lack of global governance has been "disastrous." In fact, globalization has played a crucial role in the fight against the epidemic, said Gu. The world has provided China with scarce medical supplies. Likewise, when the United States and Europe situation worsened, the international community, led by China, provided much support as well. This process of mutual support therefore illustrates the importance of global production and supply chain systems in supporting global disasters, and in allowing for international aid to reach disaster areas quickly, said Gu. Some might think that a shortage for medical emergency supplies like masks due to more demand is a problem caused by the global supply chain and that the future solution is to localize medical supplies, Gu said. In times of crisis, however, the reality is that the principle of efficiency or timely supply of critical goods cannot be guaranteed. "Because the probability of such rare public health emergencies occurring frequently is very small, we can't know in advance which country the crisis will occur," he said. While political interference may affect globalization in the short term, globalization will not end, as long as enterprises seek to maximise profits, and consumers pursue their interests. Hence, as globalization is inevitable, countries should make strengthening global governance their top priority, because globalization without global governance is "fragile and even dangerous," said Gu. The world has undergone fundamental changes, with the growth of developing countries which still lack a voice on global governance. As the power of the U.S. continues to wane, it cannot sustain its unipolar hegemony, and is further weakened by Trump administration's decision to pull out in many areas of global governance, said Gu. The most important need now is for the world to form a multi-polar system of governance as soon as possible, he said. This can be done through a reform of the existing governance system, as well as establishing new institutions. But either way, multilateralism and the participation of developing countries should be important elements, said Gu. For this to happen, cooperation between the two major powers of China and the United States is essential to solve many of the existential crisis facing the world.

The WTO’s [TRIPs} Convention on Trade-related Aspects of Intellectual Property establishes standards for protection of [IP] intellectual property applicable to biotechnology; several other WTO agreements also apply to biotechnology related trade disputes. The United Nations Education, Scientific and Cultural Organization has announced the ‘‘possible preparation’’ of an ‘‘international instrument on genetic data’’ and a ‘‘universal instrument on bioethics’’ as a follow-up to its Universal Declaration on the Human Genome and Human Rights (32); it is unclear whether these proposed instruments would be designed as binding international law. Most recently, in December 2001, the United Nations General Assembly established an Ad Hoc Working Group of the Sixth Committee to consider an international treaty to ban reproductive cloning of human beings (20)…International law in biotechnology is thus emerging in a fragmented and amorphous manner in which intergovernmental organizations with overlapping jurisdictions are addressing sector-specific aspects of the genetics revolution in a piecemeal and incomplete manner. The splintered legal process exacerbates uncertainties about the legal regime that governs biotechnology. This is partly because standards adopted under the auspices of different international organizations are being developed in increasingly contradictory ways, including conflicting legal standards related to intellectual property (33, 34). The experience of international lawmaking in biotechnology strongly suggests that the current decentralized organizational framework is ill-equipped to deal with international legal aspects of the massive public health implications of new genetic technologies and other realms of global public health. Taking the agenda forward: WHO and international health law An international health law mandate for WHO: coordination and collective management A larger role for WHO, involving coordination of the international health law enterprise, is essential for rational development and effective implementation of international health law policy.

Given that the Global North is responsible for a majority of the world’s biotechnology innovation and thereby owns most of the intellectual property (“IP”) for these technologies, a fine balance must be achieved between increasing international access to care without deterring essential [R&D]Research & Development investment. The World Health Organization (“WHO”) has created a voluntary patent pool in an attempt to resolve this tension. Known as the COVID-19 Technology Access Pool (“C-TAP”), this effort led by Costa Rica and the WHO aims to leverage collective research and incentivize international cooperation to address the pandemic. The goal of such a patent pool is to bundle multiple pieces of IP together so as to reduce the transaction costs of knowledge sharing on a patent-by-patent basis. Signatory nations to this proposal agree to sharing data, knowledge, and IP surrounding COVID-19 detection, prevention, and treatment. Thus far, 35+ countries have signed, but many of the world’s leading biotechnology innovators (including the US, UK, France, Germany, China, Russia, Canada, and India) have not joined the international effort. Importantly, such a voluntary patent pool is preferable to the pharmaceutical industry relative to a compulsory licensing approach, in which countries could entirely circumvent the patents of innovator pharmaceutical companies and allow domestic generic companies to manufacture and distribute the products.

Humans have fought over food and the means of producing it for 20,000 years, as rock art in Australia shows. Food, water and land scarcity are primary drivers in two thirds of modern conflicts today. Indeed, many people seem to have forgotten that the primary German war aim in World War II was to take farmland from the Soviets and put German farmers on it. It is very likely that controlling the Ukraine’s bountiful and reliable food bowl is among Putin’s main aims also. In the short run this is imposing hunger and even starvation on hundreds of millions of people far beyond Europe. 

Spreading hunger in turn snowballs into government failures, civil wars and refugee tsunamis around the world – as it did in 2008 when a shortfall in Ukrainian grain exports led to revolutions in three Arab countries. Already, a third of a billion people – equal to the entire population of Europe – leave their homes each year, either as refugees or economic migrants, to seek better lives in countries which seem more stable and food secure. War will add to the flood.

Agricultural biotechnology in ensuring global food security New plant breeding techniques (NPBTs) constitute a toolkit of agricultural biotechnology, which are used in the food and agriculture sectors for genetic improvement of plant varieties and animal populations, characterization and conservation of genetic resources, diagnosis of plant and animal diseases, and other purposes. They offer various science-driven approaches to mitigate global food insecurity and the impacts of climate change, both of which are accelerating at an alarming pace. It was estimated nearly a decade ago that global food production must be doubled by 2050 if the needs of the continuously growing human population are to be met. In addition, the COVID-19 pandemic and geopolitical instability have seriously threatened food security worldwide. Farmers can adopt an integrated set of tools, such as biotech crops that are climate-resilient and can better withstand various stresses, including drought, heat, and flooding. To date, 44 countries have granted regulatory approvals to 385 genetic modification events (either stacked or singular traits) for use in food (direct use or additive), covering 24 plant species. The most widely modified plants are maize, cotton, potato, soybean, and Argentine canola. The most widely targeted traits are herbicide tolerance and insect resistance, followed by modified product quality, pollination control system, disease resistance, abiotic stress tolerance, altered growth/yield, and nematode resistance.

Genetically edited crops have the potential to lower both pesticide use and soil damage and reduce greenhouse gas (GHG) emissions. Brookes and Barfoot reported that through the adoption of genetically modified (GM) crops in agriculture, a significant reduction in the total amount of herbicides and pesticides used has been achieved between 1996 and 2018. As a consequence, the environmental impact of these chemicals decreased the Environmental Impact Quotient by 18.5%. Moreover, a considerable reduction in fuel use and tillage practices resulted in a significant reduction in the release of GHG from the GM crop area. In addition, researchers are focusing on designing many traits for conserving water and land, while increasing yields.

1.1 Revisiting the patent thickets of the telecommunications industry

Patent thicket concerns never looked so real as for 5G, which is more complex, patented, and fragmented than older cellular standards. 5G relies on many different technologies, some employed by older generations of standards ensuring backwards compatibility, while others are new, such as a new radio interface, massive multi-input multi-output or heterogeneous cells

Patent pools are the oldest type of patent aggregators. They bundle patents from different owners and license them back to their members, outside implementers or both. Patent pools emerged in the US since the second half of the 19th century to provide freedom- to-operate to contributing members rather than licensing the pooled technologies to non-members. After a period of antitrust hostility in the US beginning in the mid-1900, patent pools gradually re-emerged during the 1980s for audio-visual technologies, such as the CD Audio pool between Philips, Sony and Pioneer. The MPEG-2 patent pool, approved by the US Department of Justice in 1997, set the conditions for modern pools over highly complex and fragmented information communication technology (ICT) stan- dards. After that, several standard-related pools followed, including for disks, audio-video compression, and telecommunication technologies.

The structure of pool is similar. Participation in pools requires agreement on both the internal management of pooled patents and the pool’s licensing terms and conditions. A pool member can be appointed as licensing administrator on behalf of all members, or pool members may entrust specialised entities as independent licensing administrators. By design, independent licensing administrators avoid conflicts of interest between pool members and implementers since their success rests on bringing both market sides aboard through impartial services at market-based prices. Further, pool members can monitor independent administrators with less antitrust suspicion, while these latter do not risk retaliatory infringement lawsuits if suing alleged infringers.

C. Modern Chevron doctrine has contributed to an unpredictable, unstable regulatory environment.

Since Chevron was decided in 1984, agencies’ regulatory reach has grown. See Free Enter. Fund v. PCAOB, 561 U.S. 477, 499 (2010) (noting administrative state now “touches almost every aspect of daily life”). “The Framers could hardly have envisioned today’s ‘vast and varied federal bureaucracy’ and the authority administrative agencies now hold over our economic, social, and political activities.” City of Arlington v. FCC, 569 U.S. 290, 313 (2013) (Roberts, C.J., dissenting) (citation omitted). Hundreds of Executive Branch and independent agencies or components now make policy through rulemaking, to say nothing of adjudications for which agencies sometimes claim deference. See generally Federal Register, Agencies, https://www.federalregister.gov/agencies.

In this study we examined the effect of technological uncertainty upon the performance of a stratified random sample of over 700 U.S. small/medium businesses with fewer than 250 employees. Within the sample, we observed that as technological uncertainty increases, so do the advantages that accrue to the youngest and smallest businesses. We found that these firms do better overall if they are facing higher technological uncertainty, suggesting that neither their age nor their size is a liability and conversely, may be a competitive advantage in exploiting the opportunities created by technological uncertainty.

These findings of a liability of oldness or liability of largeness in coping with technological uncertainty contrasts to the traditional generally accepted notions of a liability of newness (Stinchcombe, 1965) or a liability of smallness (Auster & Aldrich, 1986). However, it is consistent with some prior research that demonstrated how established firms adapt themselves to stable environments, such as by aligning capabilities to external conditions (DeSarbo et al., 2005) and creating “routines” (Nelson & Winter, 1982). For technological uncertainty, a condition of high environmental uncertainty leaves incumbents at a disadvantage (Tushman & Anderson, 1986). At the same time, while research on technological uncertainty has tended to emphasize firms that compete based on technological innovation (for example, Anderson & Tushman, 2001), our results are robust for a broader cross-section of both small and very small (micro) businesses.

Brock and Kaitlyn look to the word “should” in the phrase “in the event any of my children should predecease me” and claim the district court improperly found the word looked to the future. They claim the word should be interpreted as the past tense of “shall” to imply a duty or obligation. See Black's Law Dictionary 1379 (6th ed.1990). Looking at the phrase as a whole, however, rather than at a single word, we determine the phrase is considering possible future events. See In re Estate of Grulke, 546 N.W.2d 626, 627 (Iowa Ct.App.1996) (noting we must ascertain a testator's intent from the entire will).

Chevron deference and high political polarity are incompatible. For present purposes, I am referring to the original version of the Chevron test. Over the decades in which the Court has applied the Chevron test, it has qualified the test in many ways. 23 That highly qualified version of the Chevron test might produce acceptable results if lower courts correctly applied it. My concerns about the adverse effects of continued application of the Chevron test are based on my belief that circuit courts are continuing to apply the test in roughly the same manner and with about the same results as they did when the Court first issued the Chevron opinion. I have two types of evidence to support that belief.

The first type of evidence is the work of Professors Kent Barnett and Chris Walker, who have conducted by far the most comprehensive study of circuit court applications of Chevron. In their study, Barnett and Walker found that circuit courts uphold agency statutory interpretations twenty percent more often when they apply Chevron 24 than when they apply the traditional Skidmore test. Second, that finding is illustrated by some of the most important recent appellate cases. The D.C. Circuit's 2019 opinion in Mozilla Corp. v. FCC, is one of many opinions that illustrate the unfortunate results of the combination of Chevron and political polarity.

As one of the countless millions of people who were freed or protected from totalitarianism by the United States of America, it is easy for me to talk about the past. To talk about the belief of the American people and their leaders that this country was exceptional, and had special responsibilities to match its tremendous power. That a nation founded on freedom was bound to defend freedom everywhere. I could talk about the bipartisan legacy of this most American principle, from the Founding Fathers, to Democrats like Harry Truman, to Republicans like Ronald Reagan. I could talk about how the American people used to care deeply about human rights and dissidents in far-off places, and how this is what made America a beacon of hope, a shining city on a hill. America led by example and set a high standard, a standard that exposed the hypocrisy and cruelty of dictatorships around the world. But there is no time for nostalgia. Since the fall of the Berlin Wall, the collapse of the Soviet Union, and the end of the Cold War, Americans, and America, have retreated from those principles, and the world has become much worse off as a result. American skepticism about America’s role in the world deepened in the long, painful wars in Afghanistan and Iraq, and their aftermaths. Instead of applying the lessons learned about how to do better, lessons about faulty intelligence and working with native populations, the main outcome was to stop trying. This result has been a tragedy for the billions of people still living under authoritarian regimes around the world, and it is based on faulty analysis. You can never guarantee a positive outcome— not in chess, not in war, and certainly not in politics. The best you can do is to do what you know is right and to try your best. I speak from experience when I say that the citizens of unfree states do not expect guarantees. They want a reason to hope and a fighting chance. People living under dictatorships want the opportunity for freedom, the opportunity to live in peace and to follow their dreams. From the Iraq War to the Arab Spring to the current battles for liberty from Venezuela to Eastern Ukraine, people are fighting for that opportunity, giving up their lives for freedom. The United States must not abandon them. The United States and the rest of the free world has an unprecedented advantage in economic and military strength today. What is lacking is the will. The will to make the case to the American people, the will to take risks and invest in the long-term security of the country, and the world. This will require investments in aid, in education, in security that allow countries to attain the stability their people so badly need. Such investment is far more moral and far cheaper than the cycle of terror, war, refugees, and military intervention that results when America leaves a vacuum of power. The best way to help refugees is to prevent them from becoming refugees in the first place. The Soviet Union was an existential threat, and this focused the attention of the world, and the American people. There existential threat today is not found on a map, but it is very real. The forces of the past are making steady progress against the modern world order. Terrorist movements in the Middle East, extremist parties across Europe, a paranoid tyrant in North Korea threatening nuclear blackmail, and, at the center of the web, an aggressive KGB dictator in Russia. They all want to turn the world back to a dark past because their survival is threatened by the values of the free world, epitomized by the United States. And they are thriving as the U.S. has retreated. The global freedom index has declined for ten consecutive years. No one like to talk about the United States as a global policeman, but this is what happens when there is no cop on the beat. American leadership begins at home, right here. America cannot lead the world on democracy and human rights if there is no unity on the meaning and importance of these things. Leadership is required to make that case clearly and powerfully. Right now, Americans are engaged in politics at a level not seen in decades. It is an opportunity for them to rediscover that making America great begins with believing America can be great. The Cold War was won on American values that were shared by both parties and nearly every American. Institutions that were created by a Democrat, Truman, were triumphant forty years later thanks to the courage of a Republican, Reagan. This bipartisan consistency created the decades of strategic stability that is the great strength of democracies. Strong institutions that outlast politicians allow for long-range planning. In contrast, dictators can operate only tactically, not strategically, because they are not constrained by the balance of powers, but cannot afford to think beyond their own survival. This is why a dictator like Putin has an advantage in chaos, the ability to move quickly. This can only be met by strategy, by long-term goals that are based on shared values, not on polls and cable news. The fear of making things worse has paralyzed the United States from trying to make things better. There will always be setbacks, but the United States cannot quit. The spread of democracy is the only proven remedy for nearly every crisis that plagues the world today. War, famine, poverty, terrorism–all are generated and exacerbated by authoritarian regimes. A policy of America First inevitably puts American security last. American leadership is required because there is no one else, and because it is good for America. There is no weapon or wall that is more powerful for security than America being envied, imitated, and admired around the world. Admired not for being perfect, but for having the exceptional courage to always try to be better. Thank you.