Search the archive.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Calvin Warren would pause here to reassert his claims about slavery—that slavery’s economic violence created and reaffirmed the white identity, and did so through the commodification of the slave into a fungible object. My argument against him is twofold. First: if we can trace the history of the moral schema that produced this fungibility, does that not mean that fungibility was invented, and can be uninvented? Is it not possible (not a universally recognized truth, but a possibility) that there is a way to unmake the schema that created whiteness and ritually sacrificed blackness? Perhaps Calvin Warren would argue that no, there is no way—because the black ontology is being perpetually sacrificed and destroyed, there is no way to stop that cycle. It is an endless feedback cycle, he would argue—and as it spins, it maintains its integrity (sacrifice and creation), and progresses forward, consuming each black ontology as each black baby is born. But here we can return to Kate Manne. Ignore Warren’s protestations for a moment, and consider the second part of my two-fold argument: even if the morality of agency schema brought about white identity, is it possible that black people have consistency rejected and fought off these assaults on their ontology? Is it possible that music, art, dance, religion, protest and defiance—all of which were rich traditions in slave culture—indicated a truth that white violence could not reach because it cannot understand? Here I would like to propose a new way to look at dehumanization: (de)humanization. The parentheses indicate liminal space between action and thought, the place where destruction and construction are in harmony. To de-humanize, to take away humanity, is an action. By definition, it is an action that can only be done to a human. To strip away humanity, the perpetrator must actually (like Manne suggests) recognize their victim as human. You wouldn’t call a monkey a “monkey!” as an insult because a) you recognize this to be a factual statement, and b) a monkey has no capacity to understand what an “insult” is, and cannot feel insulted. A person, especially a black person, can feel embarrassed, threatened, or degraded by being called a monkey. If slavers actually thought black humans were not humans—why build an ontology around (de)humanizing? How could that practice withstand the test of time: either it would have to stop, because black people were successfully denied humanity and there would be no more reason to (de)humanize, or the very attempts of de-humanization actually reaffirm the essential humanity possessed by each human.

This is a case of “the deployment of mobile classificatory labels whose ‘truth’ depended on their oppositional meaningfulness within their respective classificatory schemas” (Wynter 28). It was a redeployment of the Manichean dualism that Christianity is so fond of, but it is important to note here that the peoples of the Caribbean and Latin America were categorically sorted as “idolaters” (as opposed to Christians) not as inhuman as opposed to the European human. Wynter acknowledges that these representational systems, especially ones that rest on dualism, are usually tautological and result in a feedback loop that is very difficult to halt. But, just as they can be made, they can be unmade. Wynter continues to explain that these categorial models regulate “the behaviors of [those] whose subjects are regulated by the narratively instituted programs that are the conditions both of humanness, the mode of the nos, and therefore of the cognitive phenomenon defining of the human, in other words, the mind” (Wynter 29). Thus, Wynter proves to the reader that the ethical foundation of European civilization was based on the historical processes of Church and State power. Those ethics then informed the white European individual’s understanding of their own purpose and place within God’s creation, which was inextricably linked to that of the idolaters’ place as well. This is a historical analysis of ontological cutting on a societal level. Thus, ontology derives from historical context.

This is critically important to the argument I will apply to Warren. 1492 is undeniably only the beginning of the physical and psychological terror unleashed upon peoples of color by white Europeans, but if we follow Wynter’s logic, it becomes clear that even if white Americans eventually view black Americans as actually inhuman, that was not the original dominant paradigm. However, I will continue to argue that Wynter’s explication of systematic representational systems actually can prove that white Americans did not see black slaves or black American citizens as lacking humanity—white Americans simply didn’t value that humanity.

An ironic dimension of pessimism is that it is the other side of optimism. Oddly enough, both are connected to nihilism, which is, as Nietzsche (1968) showed, a decline of values during periods of social decay. It emerges when people no longer want to be responsible for their actions. Optimists expect intervention from beyond. Pessimists declare relief is not forthcoming. Neither takes responsibility for what is valued. The valuing, however, is what leads to the second, epistemic point. The presumption that what is at stake is what can be known to determine what can be done is the problem. If such knowledge were possible, the debate would be about who is reading the evidence correctly. Such judgment would be a priori – that is, prior to events actually unfolding. The future, unlike transcendental conditions such as language, signs, and reality, is, however, ex post facto: It is yet to come. Facing the future, the question isn’t what will be or how do we know what will be but instead the realization that whatever is done will be that on which the future will depend. Rejecting optimism and pessimism, there is a supervening alternative: political commitment.

The question remains of how to create consistency in ontological and intra-ontological resistance. Is it materially possible to both call for a disruption of civil society while finding points of productivity in society? The answer is yes, at the margins. It is here that this paper makes another substantive departure from conventional pessimistic theorization, and again, it is useful to refer to Wilderson’s work. His theorization of the Black’s antagonistic relationship with the world concludes that the world is parasitic on Black life. Thus, he forwards the end of the world as the only ethical alternative. Afro-Pessimists are often criticized for their highly theoretical abstraction with this concept.

Though there are no explicit specifications of what the end of the world is or how Black resistance movements are to specifically get there, it is widely accepted that the position is more of an epistemic orientation rather than one that forwards literal destruction. In addition, Wilderson calls for Black refusal to engage in civil society in an unflinching paradigmatic analysis meaning that any form of engagement with civil society would require Black abjection. This is the point of friction that this paper seeks to address.

Perhaps most perplexing, Weddington seems to at once abandon the empirical project of sociology and simultaneously claim an empirical mantle. Paraphrasing Wilderson (2010), Weddington (2018) argues that

a reliance on “facts” places a false burden on the project of Afro-pessimism, such that the reliance on empirical analysis of black populations exists to inaugurate an ongoing but ultimately futile industry of applying faulty theories and concepts to populations of black slaves. (p. 6)

Technology has been intimately implicated with the reproduction of form, its mutilation and erasure. Flesh can be reified or made virtual through technology. Hence, if photography promises an enhanced mastery of nature, it also threatens conflagration and anarchy, an incendiary levelling of the existing cultural order (Sekula 1986, 4). As such the ‘wretched image’ online of Black bodies dying becomes part of a burgeoning shadow archive with an assemblage of brutalised lives. For Steyerl (2012, 44), these floating images equally stand in for their own real conditions of existence: denoting swarm circulation, digital dispersion, fractured and flexible temporalities, encompassing resistance and appropriation, and enacting conformism and exploitation. Technologies deposit their own bias while blurring truth regimes through their modes of inflection. If photographs of lynchings solidified White supremacy and claims over Black flesh, these very gruesome images used by Ida B. Wells for activism in her anti-lynching campaign were transformed in their very re-appropriation (Raiford 2012). The exclusion of Blackness and racial erasure from the realm of ontology has meant a withdrawal and equally a transcendence from the materialist, non-humanist constructions of being or having the affective and aesthetic capacity to experience itself culturally.

Photographs as part of technological regimes of remediation are then not singular compositions but yielding relations to one another, functioning through a visual indexicality of the social and moral. In so doing, Raiford (2012, 302) contends that the multiple visual representations of African Americans were always and continue to be in intense dialogue with each other. In tandem, Ida B. Wells’ engagement with the shadow archive forces us to rethink the collapsed categories of Blackness in resurrecting Black humanity. Black bodies ordained through frames of criminality, the pornographic, ethnographic, the comedic, or in the margins of the sentimental portraits of Whites demonstrate how technology has been used to reconstruct not merely individual and collective selves, but also racial and national histories (Raiford 2009, 120). Hence imagery and its re-appropriation has transformative potential.

I have been asked by more than one graduate student at more than one university how I hope to reconcile the claims of Afro-Pessimism with my insistence that voice is a fundamental human capacity. I maintain, more or less consistently, that voice is a public occurrence animated by the acknowledgment of the ethical and affective dimensions of speech.16 The repetition of the inquiry is energized by the fact and mode of Afro-Pessimism being taken up in debate and argument organizations, programs, and competitions. I am not going to attempt to complete this reconciliation in this space, in part because I have not quite accomplished it. But I do have to briefly sketch out the terms of the challenge in order to try to evaluate the strengths and limits of critical cosmopolitanism as an academic practice that would ask “why and how” Communication Studies might interact with the Afro-Pessimistic enclave in Black Studies. While criticizing the work of Black film theory, Frank Wilderson embarks upon an ambitious and provocative campaign meant to foster an understanding of the conditions of impossibility for Black subjectivity within the contemporary ontological paradigm. The term “Afro-Pessimism” signals the work of scholars who are “theorists of structural positionality.”17 As such, Blackness and Whiteness18 are interrogated as emerging through a conjuncture with brutal modern technologies of organization and domination, and the birth of the very idea of race. Put simply, it took the modern invention of slavery and colonialism to bring about the racial ideologies that make Blackness and Whiteness intelligible. The Slave/Black, then, should not be considered exploited labor or simply oppressed. “Rather, the gratuitous violence of the Black's first ontological instance, the Middle Passage, ‘wiped out [his or her] metaphysics … his or her customs and sources on which they are based.’”19 The Black occupies a coordinate that marks a fundamental structural antagonism with the West, with Whiteness and, indeed, with the Human. It is quite easy to see why the term “Pessimism” is apt. The Black names the condition of state violence, a flesh-object brought into the world for “accumulation and fungibility.”20 The Black is essential to the production of Western subjectivity and to notions of what it means to be human. “In short, White (Human) capacity, in advance of the event of discrimination or oppression, is parasitic on Black incapacity: Without the Negro, capacity itself is incoherent, uncertain at best.” Not only is the Black incapacitated as a structural determinate, the Black is “a structural position of noncommunicability.”21 But there is a form of communication here nevertheless because the Black paradoxically signifies the “outside” that allows for the articulation of “anti-Black solidarity.”22 There is theoretical and historical support for such an analysis. For example, the early twentieth-century Americanization projects used Blackness as an exclusionary trope meant to help spur non-White immigrants from Europe and Asia toward Whiteness.23 And here is where the term “Pessimism” seems inadequate. As a structurally overdetermined body-image in the Western imaginary and symbolic field, Blackness registers near-nothingness: In perceiving Black folk as being alive, or at least having the potential to live in the world, the same potential that any subaltern might have, the politics of Black film theorists' aesthetic methodology and desire disavowed the fact that “[Black folk] are always already dead wherever you find them.”24 Given this dire diagnosis, why and how might we interact with Afro-Pessimism? Speaking from the point of view of a Black rhetorical scholar (and a scholar of Blackness), the answer to why is virtually self-evident: thinking through Blackness as a condition of possibility for rhetorical action and social justice is a life-long pursuit that, given the tragic killing of Michael Brown in Ferguson, Missouri in August 2014, feels especially burning.25 Given the affective intensity of the charge of Black noncommunicability, a failure to meaningfully interact would engender a different kind of “violence”; in this case a structural injunction sponsored by a lingering and recurring anxiety regarding the authority of Communication Studies. And so how might we interact? If I take up the orientation of critical cosmopolitanism, I need to recognize immediately that my efforts can be dismissed by the Afro-Pessimist as colonial; that is, as a reiteration of the sort of practices that presume that one's epistemologies can translate other's bodies of knowledge into comprehensible and useful concepts and constructs. And yet, we must begin where we are, not where we hope to be. Hence, I want to make two modest and one not-so-modest suggestions for how Communication Studies in general and Rhetorical Studies in particular might interact: first, Wilderson calls for “a new language of abstraction” to elaborate “Blackness's grammar of suffering.”26 But in my reading, Afro-Pessimism is already too reliant on a language of abstraction. Lois McNay, in The Misguided Search for the Political, recently contends that theories of political power are overwrought owing to a social weightlessness brought about through high abstraction. She recommends the reinvigoration of the concept of “social suffering”—not as an entrenched category of victimage but, rather, as the habitus of lived experience that must be articulated to analyses of structural positionality.27 Second, I agree with McNay (who says nothing about Afro-Pessimism, by the way) that structural antagonisms are not static, but are movable and moving configurations. The Afro-Pessimist in Wilderson's account must agree that when a non-Black person is thrust toward the horrible condition approximating (but not identical to) the Black's structural position, that adjustment can rightfully be called a “Blackening.” As a happening—and not an event that has simply always already happened—this racialized procedure makes itself felt and knowable in the dense social fabric of the everyday. If the Black is in a structural position that delimits the impossibility of capacity, might we enjoin an analysis of the vocabulary of that impossibility itself? And since a “Blackening” receives intelligibility from the structural position of the Black, might we gain some productive understanding from a scrutiny of key discursive and material forms of “Blackening”? Was not Michael Brown “Blackened” in and through (and not only a priori to) his bodily encounter with state violence? Given my ongoing scholarly interest in the Zombie, I am willing to concede that an Afro-Pessimist might claim that Brown was, at the moment he was shot to death, “the dead but sentient thing, the Black” struggling “to articulate in a world of living subjects.”28 This concession functions as an assertion: the Zombie is not wholly outside Western intelligibility; it haunts the nether regions between Human and Black. Its undead existence is material and social, and supplies some vital resources for inventing a new language—a grammar of (Black) suffering. Perhaps “there is no way to Africa through the Black,”29 but maybe there is a route through the Zombie. I have argued for such a project using the terminology of reanimating Zombie voices.30 Lastly, we might think of this gloomy predicament as a tenuous point of contact with Afro-Pessimism. Wilson's intellectual history provides the basis for such a conception. Communication Studies has been (and continues to anguish over the extent that it still is) in the structural position of inferior and alienated. There should be no shame in admitting that the discipline, in relation to both the Social Sciences and the Humanities, has been and is subject to being “Blackened.” Indeed, its originary moment, as I alluded to above, meant the rejection of a set of nationalistic proprietary politics that treated Speech teachers like disposable labor. By any reasonable measure, that structural positioning—despite the fact that the people involved were White—was a racialization, a “Blackening.” Let's be perfectly clear: there is no identification being made here with the fundamental antagonism associated with the Black. However, this racialized politics (among other political registers) might provide a new critical vocabulary for Communication scholars if we do the painful work of coming to grips with the discursive and material practices of “Blackening.” There are structures of different scales. Academic structural dynamics are not dissociated from the identity ideologies implicated in nationalism and cosmopolitanism, citizenship and exile, privilege and destitution, Whiteness and Blackness. Indeed, Wilderson's critique is launched from and resides within those very same structural dynamics. It seems to me then that, at the very least, our shared social suffering with Afro-Pessimism—although of vastly different magnitudes and qualities—should be asserted as a mode of transnational fidelity.

Discussions of the end of the world presume that there is something called the world that could end. While this apocalyptic pronouncement can function for individuals in an analogous way (“I feel like my world is ending”) and at the level of larger communities (the arrival of Europeans in the “Americas” resulted in the end of many Indigenous worlds), it is less clear that one can speak coherently of the end of the world when “the world” is taken as something which is singular and planetary in scope; when the world is understood as The World.⁷ There are at least two compelling reasons for rejecting this grander sense of The World. The first is that this concept is philosophically incoherent. The second is that this notion of The World is an imperialist attempt to impose a unitary imaginary on a planet that is home to many human and other-than-human worlds.

Perhaps the most succinct philosophical argument for the incoherency of The World is offered by Markus Gabriel.⁸ For Gabriel, The World is synonymous with totality. “It is supposed to be the place where everything takes place.”⁹ His “meta- metaphysical nihilist” position is derived from his ontological claim that all things must appear in a “field of sense.” Nothing appears without a background. If The World is the ultimate background – that in which all other things appear – then there is nothing in which The World itself appears. Defined this way, The World falls prey to an infinite regress and cannot exist.

Finally, it is worth discussing the political upshots of Afropessimism, and how the book “reads” within our current political moment. Wilderson’s own political stance is clear enough in its broad outlines: Black liberation requires the total destruction of the existing relation between Slaves and Humans. In one of the book’s more hopeful moments, Wilderson grants that “social death,” like class and gender, can be overcome, since it is ultimately “constructed by the violence and imagination of other sentient beings.” Overcoming social death, however, is necessarily apocalyptic: “The first step toward the destruction is to assume one’s position… and then burn the ship or the plantation, in its past and present incarnations, from the inside out” (103). Afropessimism proposes a political ethic for those outside politics, whose engagement with the political would signify the end of politics as we know it.

Wilderson’s political vision is a “grenade without a pin,” or a “looter’s creed” which strives to bring about the Fanonian “end of the world” (174). Yet if your politics requires you to “burn the ship or the plantation…. from the inside out” with yourself inside, you should be extremely sure that this politics is rooted in a true and comprehensive vision of Black people’s situation in the world. Pinless grenades and looter’s creeds can fall into anyone’s hands. They can harm countless bystanders. Their volatility makes them unpredictable. What if the theoretical conceits of Afropessimism not only fail to bring about the end of the world, but give succor to projects dedicated to making an already awful anti-Black world worse? Ironically, those with reactionary anti-Black politics, or those in thrall to the magic of Whiteness and convinced of the subhumanity of Blackness, should appreciate the work that Wilderson accomplishes here. In fascist hands, a claim like “it is absolutely necessary for Blacks to be castrated, raped, genitally mutilated and violated, beaten, shot, and maimed” in order for non-Blacks to achieve “confirmation of Human existence” is just the sort of work a society running on the myth of Black inhumanity and subpersonhood requires.