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Christopher J. Fettweis, an American political scientist and the Associate Professor of Political Science at Tulane University, “Chapter 1: Unipolarity and the System,” Psychology of a Superpower: Security and Dominance in U.S. Foreign Policy, Columbia University Press, 2018, accessed through Georgetown Libraries

If U.S. power is the only thing holding back the forces of global chaos, then we would expect to see some variation in violence as the relative capabilities of the United States wax and wane. During the 1990s, the United States cut back on defense by about 25 percent, spending $100 billion less in real terms in 1998 than it did in 1990.74 To those believers in the neoconservative version of hegemonic stability, this irresponsible “peace dividend” endangered both national and global security. “No serious analyst of American military capabilities doubts that the defense budget has been cut much too far to meet America’s responsibilities to itself and to world peace,” argued Kristol and Kagan at the time.75 The world grew dramatically more peaceful while the United States cut its forces, however, and it stayed just as peaceful even as spending rebounded after the 9/11 terrorist attacks. The incidence and magnitude of global conflict declined while the military budget was cut under President Clinton, kept declining (though more slowly) as the Bush administration ramped it back up, and stayed steady as Obama cut back again. U.S. military spending has varied during the New Peace from a low in constant dollars of less than $400 billion to a high of more than $700 billion, but war does not seem to have noticed.

Austin Sarat and Dennis Aftergut, “The Supreme Court’s Stealth Attack on Expertise Helps Pave the Way for Authoritarianism,” Verdict, 01-24-2022,https://verdict.justia.com/2022/01/24/the-supreme-courts-stealth-attack-on-expertise-helps-pave-the-way-for-authoritarianism

On January 13, in National Federation of Independent Businesses v. Department of Labor, the Supreme Court’s conservative majority cast its lot with the anti-vaccination Republican base, its mistruths, and the attack on expertise. For the Court, it was convenient that doing so would serve its larger partisan agenda.

Ethan Blevins, “National Review: Ending the Administrative State Is an Uphill and Necessary Battle for a Free Nation,” Pacific Legal Foundation, 02-20-2020, https://pacificlegal.org/national-review-ending-the-administrative-state-is-an-uphill-and-necessary-battle-for-a-free-nation/

A few statistics demonstrate the degree to which the lawmaking authority vested in Congress has been passed off to eager bureaucrats. In 1950, the Federal Register — the federal government’s daily journal containing rules, proposed rules, and public notices — published 9,562 new pages. In 2016, that number had exploded by 97,069 new pages just that single year, the vast majority of them dedicated to new rules and proposed rules.

Although it was not clear at the time, Bill Joy’s article warning of the dangers of emerging technologies was to spawn a veritable “dystopia industry.” More recent contributions have tended to focus on artificial intelligence, or AI; electric car and space technology entrepreneur Elon Musk has warned that AI is “summoning the demon” (Mack, 2015), while physicist Stephen Hawking has argued that “the development of full artificial intelligence could spell the end of the human race” (Cellan-Jones, 2014). The Future of Life Institute (2015) recently released an open letter signed by many scientific and research notables urging a ban on “offensive autonomous weapons beyond meaningful human control.” Meanwhile, the UN holds conferences and European activists mount campaigns against what they characterize as “killer robots” (see, e.g., Human Rights Watch, 2012). Headlines reinforce a sense of existential crisis; in the military and security domain, cyber conflict runs rampant, with hackers accessing millions of US personnel records, including sensitive security clearance documents. Technologies such as uncrewed aerial vehicles, commonly referred to as “drones,” are highly contentious in both civil and conflict environments, for many different reasons. A recent US Army Research Laboratory report foresees genetically and technologically enhanced soldiers networked with their battlespace robotic partners and remarks that “the presence of super humans on the battlefield in the 2050 timeframe is highly likely because the various components needed to enable this development already exist and are undergoing rapid evolution” (Kott et al., 2015: 19). How is one to think about this outpouring of analysis, hypothesis, events, and existential angst? A useful first step is to realize that there are three levels to such discussions of technology.2 Level I is the instrumental level: a gun shoots a bullet and kills someone; a watch is used to tell time; a vaccine is used to prime an individual’s immune system to protect against a disease. Level II is the systems level: an uncrewed aerial vehicle conducting surveillance is part of a battlefield intelligence system; watches function in a globally standardized time system that was only institutionalized in the United States by an act of Congress in 1918; vaccinations are part of a public health system. Level III, the effect of a technology on individual psychology, society and culture, economic patterns, geopolitical status, and other Earth systems, is unpredictable and uncertain. One of the major drivers for standardized time, for example, was railroad technology, which was certainly not foreseen by those who first began developing steam locomotives. It is important to remember, however, that even if the specifics of Level III impacts cannot be predicted a priori, they will occur. Level I effects are usually not difficult to figure out: They are the reasons that a technology is commercialized. For example, the Level I effect of a bomb-dismantling robot is clear: It helps save the lives of soldiers who would otherwise have to be doing that job. Level II effects can be more complex and may point in different directions than first-order effects. A robotic hummingbird surveillance device may have entirely beneficial effects if used in counterinsurgency, because it can improve targeting and thus reduce collateral damage (Level I effect). But if the same technology becomes widely available to political parties and divorce lawyers, it could have very negative effects on privacy and public discourse (a Level II effect). And, hypothetically, robotic bugs and hummingbirds, combined with data-mining software and massive databases, could become important tools of techno-totalitarian elites, a possible, but hypothetical, Level III effect. This distinction among Level I, Level II, and Level III is useful because much of the confusion regarding emerging technologies comes from conflating relatively predictable Level I aspects of an emerging technology with highly unpredictable Level III hypotheticals, and treating them as equally valid insights into future technological trajectories. Not so. A concern about the use of drones to attack human targets in countries that are not participants in a conflict is qualitatively different than polemics against “killer robots,” and while conflating the two for purposes of argumentation may be effective, it is profoundly misleading. We have historical and operational data that enable us to evaluate the former; we don’t even know what a “killer robot” really is, except as an evocative term, and virtually no idea what would happen if such technologies became widespread in the real world. An analogous analytical mistake occurs when a particular use of a technology is treated as if it were separable from the technology itself. A medical advance in computer-brain interfaces in prosthetics, for example, is the same technology that might be used in the near future to directly connect a soldier to a remote weapons system. Any effort to ban “military AI” will fail because “military AI” is not a relevant technology category; rather, it is the advance of the underlying technology as a whole that ensures at some point that AI will be integrated into military devices. (Notably and presumably unintentionally, the proselytizing against “military AI” fails to admit that such a policy implicitly favors powers, such as Russia and ISIS, that are operating under doctrines of asymmetric warfare that privilege non-traditional tactics, technologies, and conflict.) It is precisely this confusion that one notes in the language used in many of the comments on and critiques of emerging technologies, including some of the examples given above. It is not so much a question of whether these popular dystopian visions are accurate predictions: They almost certainly are not, because the ability to predict the future paths and implications of complex and powerful technology systems is simply nonexistent. Level I assertions of knowledge are being extended to inherently unpredictable Level III systems without understanding that an important conceptual shark has been jumped. But it is useful to explore the assumptions underneath the current rage for dystopian visions of emerging technologies, which are not as implausible as some have suggested. To reduce such confusion, let me be clear from the beginning. Because much recent commentary regarding emerging technologies is generic and apocalyptic, that is what this essay will focus on. In other words, I will not concern myself with whether a particular weapon system, or smart phone app, or cyber worm, or AI tool is good or bad or competitively successful, a Level I question. Nor will I address the foreseeable Level II effects, an analysis which, as in the case of Level I, would focus on particular technological artifacts or applications and their systemic effects. Rather, since apocalyptic tends to be Level III stuff, that’s where we’ll go. Emerging technologies as an Earth system The first question to ask about emerging technologies is deceptively simple: Is today really that different? Is there something about today’s emerging technologies—which for purposes of this analysis include nanotechnology, biotechnology, information and communication technology (ICT), robotics, applied cognitive science, humtech (design and engineering of the human as a foundational emerging technology), and their various combinations and permutations—that is qualitatively different from those that characterized other eras of technological change? If there isn’t, much of today’s dramatic language can be understood as simply a reflection of the emphasis that all humans give to the particular era and landscape and culture within which they exist. Each generation tends to overemphasize the degree of change that it experiences, partly because of the immediacy of the stresses to which it is exposed, and partly because it is easy to underestimate how difficult and unpredictable life was in the past, since when one looks back at history it seems to flow logically and necessarily. Indeed, apocalyptic fears have been common when many major technology systems first emerged because of this immediacy, even as subsequent generations grew to view the technology as banal, even boring. In the early days of railroads, for example, there was a widespread belief that traveling at the heretofore unimaginable speed of 25 miles per hour would kill the passengers, in part because such technology was against the obvious will of God. As an Ohio school board put it, If God had designed that His intelligent creatures should travel at the frightful speed of 15 miles an hour by steam, He would have foretold it through His holy prophets. It is a device of Satan to lead immortal souls down to Hell. (Nye, 1994: 57)3 In this case, however, a strong argument can be made that emerging technologies today are different not just in degree, but in kind, from those of the past. To begin with, the scope, scale, and speed of technological change are unprecedented. Where previous waves of technological change have involved a few core technologies, such as railroads or electrification, today technological evolution is occurring across the entire technological frontier. Partially as a result of such technologies rippling across a population of seven billion people, we now live on a terraformed planet, the first world we know of anywhere that has been shaped by the deliberate activities of a single species. That is not a discontinuous process, but it is qualitatively new. Moreover, as the discussion of the engineered warrior of 2050 suggests, the human itself has become a design space. It is certainly true that people have always changed themselves in many ways, from consuming intoxicants of all kinds, to medicine, to education, but there is little question that the direct interventions that are now possible, combined with accelerating advances in fields such as neuroscience, genetics and molecular biology, and prosthetics, make virtually all aspects of the human, including cognitive and psychological domains, potentially subject to design. That the designer is not just engineering external systems, but him- or herself, adds a degree of reflexivity, nonlinearity, and complexity that makes simple predictions about particular technologies tangential and irrelevant at best. It is worth emphasizing in passing that the argument that humans are at risk from emerging technologies is in an important sense circular. Humans are increasingly both designer and designed; they are, in other words, increasingly an emerging technology in their own right. People are many things, but they are now, and certainly will be in the future, a design project. Thus, in a meaningful way the argument that people are at risk from emerging technologies becomes the argument that emerging technologies are at risk from emerging technologies, which makes little sense, and isn’t very helpful analytically, or in guiding policy or practice. Additionally, technological evolution is accelerating, which has significant implications. Past rates of technological change were slow enough that psychological, social, and institutional adjustments were possible, but today technology changes so rapidly that technology systems decouple from governance mechanisms of all kinds. All these factors, operating together, synergistically increase the impact, speed, and depth of change. Any technology potent enough to be interesting will inevitably destabilize existing institutions, power relationships, social structures, reigning economic and technological systems, and cultural assumptions. Previous waves of technological change—from steam and coal, to electricity, to rail and automotive technologies—have destabilized and restructured human and natural systems at all scales, interacting unpredictably with contemporary natural, human, and built systems. Railroads, for example, opened up continental interiors, creating the underlying transportation infrastructure necessary to support industrialized agriculture, which, coupled to advances in production of artificial fertilizers and innovation in farm machinery, created the potential for dramatic increases in global human population. It also dramatically changed ecologies and landscapes; the American Midwest is an agricultural breadbasket, not a large swamp, because railroads provided the link between that farming region and the demand of the East Coast and, via steamship, Europe. The Earth’s atmosphere has been in part restructured by development of internal combustion engine technology coupled to a psychologically potent automotive technology, which is in turn based on a massive fossil fuel infrastructure. Proposals to address climate change through so-called “geoengineering technologies,” from designing the atmosphere to reflect incoming sunlight to deploying devices that capture carbon dioxide in the atmosphere, are explicitly intended to engineer major natural systems and cycles. In short, major new technologies are not just about artifacts; rather, they represent an unpredictable, sometimes apparently discontinuous, shift in the structure of integrated Earth systems. Moreover, these shifts are not predictable a priori; railroads, for example, required new systems of time, of communication, and, more subtly, of finance and of corporate management. Development of a mass consumption economy, with washing machines from new merchandising giants and cars from Detroit, required innovation in the development of consumer credit, and massive coupled innovation in everything from road systems to supply-chain management. Widespread consumer credit, in turn, generated an ability to consume, and a concomitant quality of life, that was beyond imagining for those generations of humans that lived prior to the 20th century. It is thus highly likely that the first implicit assumption of the dystopian perspective is correct: Things are indeed different today, and the difference is fundamental and qualitative, not simply one of degree. Emerging technologies are making everything from individual molecules, to the human, to the planet itself, design spaces. Moreover, it is also likely that technological evolution, and all the concomitant changes in coupled institutional, social, economic, and cultural systems, will be more challenging and complex than anything humans have yet experienced. The remaining two issues, then, are: First, what can we do about it; and second, is this the end of humanity? What can we do about it? Precisely because new technologies are disruptive, they inevitably call forth opposition, both by conservative social forces and by threatened economic interests. Historical examples abound. With railroad technology, for example, conservative states such as the Austro-Hungarian Empire and Russia resisted rapid deployment, in part because it was feared that railroads might create social unrest in the still somewhat feudal and highly stratified cultures that characterized such countries; the French held back because of concerns it would destroy rural culture. The predictable result was that modernizing states that realized the commercial and military potential of railroad technology, such as Prussia, rapidly overtook the laggards in building rail infrastructure, with an eventual shift in geopolitical stature. In the United States, railroads were bitterly opposed by river transportation interests; in fact, Abraham Lincoln, when still a practicing lawyer, argued and won the seminal case for the Rock Island Railroad.4 (River shippers at the time were arguing that any railroad bridge over a river was an unlawful obstruction of commerce; had they been successful, railroads would have been limited to operating between rivers and streams, but not crossing them.) A more recent example is provided by the thousands of people sued by the Recording Industry Association of America in its vain effort to defend a technologically obsolete business model for the distribution of music. There are plenty of reasons, in other words, why emerging technologies might be regarded as dangerous and disruptive, and thus worth stifling. History, however, indicates that while local opposition can be successful, it will not halt the evolution of technology. Consider, for example, the Japanese attempt to limit gunpowder technology to preserve traditional Samurai culture; successful in the short term, it left Japan open to subjugation by Western naval forces with gunpowder technology. Similarly, environmentalists and governments in Europe have aggressively opposed genetic engineering (GMOs, or “genetically modified organisms”) in agriculture. Outside Europe, however, GMO technology has been one of the most rapidly adopted agricultural technologies in history. Efforts to regulate the proliferation of nuclear weapon technology have been somewhat successful, but it appears unrealistic to assume that the technology can be uninvented. Especially given today’s globalized culture, and the strategic and military advantages that emerging technologies can provide, it is highly unlikely that meaningful constraints on technological evolution, whether derived from cultural, competitive, or religious foundations, will be successful. That is particularly true as all players in the global Great Game understand that leadership in science and technology domains is a necessary, if not sufficient, prerequisite for dominance. Moreover, given the complexity of many emerging technology systems, especially as they co-evolve with other natural, built, and human systems, it is unfortunately also likely that projecting their effects and evolutionary paths before they are actually adopted and become embedded in their social and cultural context is not just hard, but for all practical purposes impossible. One can, and should, generate scenarios. But exhortations that purport to elevate hypotheticals to predictions and implications of certainty about future states are misplaced. In short, there is no certainty, and the genie is well and truly out of the bottle. However, that doesn’t necessarily imply that we can’t modulate future technological evolution, but that the way we think about it today may be too simple, and our institutions too slow and maladaptive, to be up to the task. Beyond simplistic dystopianism This analysis suggests that, as dystopians might argue, emerging technologies are indeed potent, and that, especially as the human is becoming an active design space, if AI doesn’t destroy humanity, something will. But this is a grossly incomplete perspective. Humanity, as it appears at any particular time, is always doomed. Foragers and hunter-gatherers were doomed, as were the serfs of medieval Europe with their small plots and lives lived within a radius of a few miles of where they were born. And so, in our turn, are we. Doom is, in other words, evolution, and it is unlikely that we will stop it—or, really, that we should want to. In fact, the images that we cling to, personally and institutionally and culturally, are already obsolete. The ethics and values that we insist we will impose on the future are not only historically and culturally contingent, but already obsolete as well. We want the physical and cultural landscape we live in now to propagate into tomorrow, because we all unconsciously privilege the present, but that is not how complex systems work. They evolve, and indeed our world is evolving at a remarkable and accelerating clip. The fallacy of the dystopians, then, is not in their analysis of the power of technology, or the accelerating and destabilizing rates of change. The fallacy is in equating evolution with dystopia, and, without admitting it, privileging the present over the promise and inevitability of the future. What is at risk is the limited mental model of “human” that all of us carry with us, not “humans” as an ongoing process. This is actually a common category mistake in modern discourse: Sustainability advocates and environmental activists often claim that “the planet is at risk,” but of course it is not. The planet is a large mass of rock and a film of various carbon compounds, and that is not at risk at all. What is at risk is a particular mental model of what the world should look like, a constructed snapshot. That does not mean that there aren’t many environmental issues that require attention; of course there are. But, as in the case of the emerging technology discourse, it does mean that existential catastrophe language is not only invalid, but can actually prevent seeking constructive adaptations to accelerating change. Our only recourse is neither technological fatalism nor ethical relativism. It is true that we have not yet appreciated, much less begun to respond to, the challenge of a future that will indeed be more complex and difficult than anything we have experienced as a species. Nonetheless, we can already identify several important principles. For example, we need to stop thinking of “problems” with “solutions,” and think more in terms of “conditions” that will require long-term, adaptive management. Challenges such as ISIS and climate change will not be solved, but they can and must be managed in light of other relevant goals. In this, the experience with nuclear weapons is instructive: They are not a problem that can be unmade, but they are a condition that can be, and has so far been, relatively successfully managed. We also need to focus on creating option spaces—portfolios of social, institutional, and technological choices that can be adaptively and flexibly deployed in complex environments. Similarly, we need to play with scenarios: If dystopian pronouncements are instead taken as scenarios—“What would you do if…?”—they are far more useful and informative than suggestions of doom. Socially and institutionally, we need to become more agile and adaptive. This is uncomfortable for many, because it implies a degree of contingency and uncertainty, but that is precisely why such skills are necessary. The rate of technological change is unforgiving and has already decoupled to a large extent from traditional governance mechanisms. So we need to develop new ones. Individually, we need to become far more humble about our ability to visualize and prognosticate on a complex and dynamic future. Cautionary scenarios and hypotheticals are welcome exercises in practicing to adjust to the unknowable that lies in front of us, but they are not appropriate foundations for policy or legal action in the present. Nightmares are seldom reality, and when bad things do happen they are seldom the ones we thought about. Fear and anger in the face of change are popular responses—witness the rise of far right and far left factions, and fundamentalisms of all stripes, around the world—but they are maladaptive, and those in responsible positions at least cannot afford such luxuries.

Michael Van Beek, “Pandemic failures expose problems of the administrative state,” The Hill, 07-23-2022, https://thehill.com/opinion/healthcare/3570569-pandemic-failures-expose-problems-of-the-administrative-state/

State governments used an unprecedented level of executive power to respond to the COVID-19 pandemic. Governors and other state officials tried to control entire state economies and even our private interactions. The impact these measures had on overall public health is not yet known, but there were many blunders made along the way. These failures expose some inherent problems of the administrative state — the vast landscape of departments and agencies that make up the executive branch of government.

Nina Mendelson, “Private Control over Access to Public Law: The Perplexing Federal Regulatory Use of Private Standards,” Michigan Law Scholarship Repository, 03-01-2014, https://repository.law.umich.edu/articles/887/

Perhaps to state the obvious, regulatory standards (as well as statutory standards) are among the longest-lasting, highest-impact exercises of power by government. They cover virtually every area of governmental power, apply to entire classes of entities and individuals, and have prospective, legally binding effect until the government takes further action to repeal them. As a group, then, legislative and quasi-legislative actions are the core activities that distribute the benefits and burdens of government.

Nina Mendelson, “Private Control over Access to Public Law: The Perplexing Federal Regulatory Use of Private Standards,” Michigan Law Scholarship Repository, 03-01-2014, https://repository.law.umich.edu/articles/887/

And to ensure accountability, we need at least as much—usually greater—public access to quasi-legislative actions as to more narrowly focused decisions, where more process may be available. Legislative and quasilegislative actions are among the core actions of modern government, elections are critical for accountability, and a citizen’s ability to cast an informed vote in a democracy depends on meaningful public access.

Kevin J. Hickey, “Copyright in Standards Incorporated by Reference into Law and the Pro Codes Act,” Congressional Research Service, 09-26-2023, https://sgp.fas.org/crs/misc/R47656.pdf

When technical standards become incorporated into the law, however, maintaining copyright protection on them may raise a “serious constitutional concern” about public access to the law.13 Various public-access and government-transparency organizations—such as Public.Resource.Org, Inc. (PRO)—have disregarded SDOs’ copyright assertions and posted technical standards for free online.14 These groups argue that IBR standards lose copyright protection once they are incorporated into law, or that their activities are a permitted fair use of SDOs’ copyrighted material.15 Citing both old and recent Supreme Court case law,16 public-access groups argue that because all citizens are entitled to freely access and debate the law under the Constitution’s Due Process Clause and the First Amendment,17 access to it cannot be conditioned on the consent of a copyright holder (here, the SDO). Several copyright disputes between SDOs and public-access organizations have led to protracted litigation.18

Kevin J. Hickey, “Copyright in Standards Incorporated by Reference into Law and the Pro Codes Act,” Congressional Research Service, 09-26-2023, https://sgp.fas.org/crs/misc/R47656.pdf

When technical standards are incorporated into law, maintaining copyright protection on them can raise constitutional and other concerns about public access to the law. Under federal law, standards incorporated by reference into federal regulations must be made reasonably available to interested parties. State and local governments also often rely on IBR standards, and may have differing policies for public access. Many SDOs choose to make their standards available in some form online.

Catherine Shu, “Can the law be copyrighted?,” TechCrunch, 04-09-2019, https://techcrunch.com/2019/04/09/can-the-law-be-copyrighted/

“Copyright protection of our codes is essential to our ability to continue to update our codes,” says Oncu. She adds that the ICC believes if the lawsuit is ruled in UpCodes’ favor, it may potentially set a precedent that will make it difficult for it to have a revenue stream and continue creating high-quality codes.

Olia Kanevskaia Whitaker, “The Saga of Copyrighted Standards: a Perspective on Access to Regulation,” The Research Handbook on Law & Technology, 06-19-2023, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4473104

While certainly not every governmental use of standards would quality as a “fair use,”63 and while it is only the use of some portions of standards documents that can benefit from Section 107 of the Copyright Act, one may see how a standard that has become a part of law and is made available to public without any commercial motives may be covered by the fair use doctrine. At the same time, whereas the doctrine protects the use of incorporated standards, it is inept to protect those who seek spreading information (Sweeney, 2017). In the recent PRO v ASTM appeal, PRO claimed a fair use defence since it believed to have provided free access to law, served the statutory and non-commercial purposes, and aimed to accomplish a transformative purpose.64 The D.C. Circuit Court declined to directly address the issue on the ground of constitutional avoidance, but held that the online publication of standards by PRO, while may be a fair use, should be further evaluated by the District Court case-by-case, or a “standard-by-standard”, basis.

Corynne McSherry, “Access to Law Should Be Fully Open: Tell Congress Not to Be Fooled by the Pro Codes Act,” Electronic Frontier Foundation, 10-25-2023, https://www.eff.org/es/deeplinks/2023/10/access-law-should-be-fully-open-tell-congress-not-be-fooled-pro-codes-act

Second, it doesn’t really make sense. The many volunteers who develop these codes neither need nor want a copyright incentive. The SDOs don’t need it either—they don’t do anything creative (convening volunteers is important work, but not creative work), and they make plenty of profit though trainings, membership fees, and selling standards that haven’t been incorporated into law.

Arnold E. Brown, II, Kenneth Wilton, Intellectual Property Attorney at Seyfarth, J.D. from the University of California College of the Law, Joseph Myers, Director of Innovation for the Intellectual Property Practice Group at Seyfarth, J.D. from Vanderbilt University, “The District of Columbia Court of Appeals’ Recent Significant Legal Precedent Carries Implications for Standards Organizations,” Seyfarth, 12-19-2023, https://www.seyfarth.com/news-insights/the-district-of-columbia-court-of-appeals-recent-significant-legal-precedent-carries-implications-for-standards-organizations.html

Effect on Potential Market: The court found the evidence regarding the potential market harm to be equivocal. It noted that frequent updates by standards organizations and less frequent updates by lawmakers meant that the free copies provided by PRO might not be adequate substitutes for current standards. Additionally, no significant economic analysis was presented to demonstrate harm to the market. The court also recognized the substantial public benefits of free access to the law.

David Halperin, “Congress Should Reject Bill To Let Private Groups Control Access To U.S. Laws,” Republic Report, https://www.republicreport.org/2024/congress-should-reject-bill-to-let-private-groups-control-access-to-u-s-laws/

The “reading room” rationing of law is unnecessary

Katherine Klosek, “No One Can Own the Law—So Why Is Congress Advancing a Bill to Extend Copyright to It?,” Association of Research Libraries, 04-19-2024, https://www.arl.org/blog/no-one-can-own-the-law-so-why-is-congress-advancing-a-bill-to-extend-copyright-to-it/

A related argument by supporters of the Pro Codes Act is that the SDOs provide a valuable service, and therefore they deserve a revenue stream in exchange for their contribution to the public good. But copyright law does not grant copyright to reward hard work (Feist Publications v. Rural Telephone Service). Further, the DC Circuit Court found that although Public.Resource.Org has been posting incorporated standards for 15 years, “the plaintiffs have been unable to produce any economic analysis showing that Public Resource’s activity has harmed any relevant market for their standards. To the contrary, ASTM’s sales have increased over that time.” The SDOs can also derive significant revenue from selling training materials and programs. SDOs do not need a copyright incentive; the development of standards advances the economic interests of their members.

The Prizes CP claims to solve the Takings Advantage. Instead of altering sovereign immunity, the CP says that the government should give monetary prizes to the companies that have the best/most significant pharmaceutical and life sciences innovation, which claims to solve competition without altering IP.

The Fair Use DA argues that overturning the ASTM case would shift how the courts view Fair Use, which would have negative implications for OpenAI in its upcoming suit against the New York Times: OpenAI vs. New York Times. This DA is a net benefit to all of the CPs.

The Ban the Plan CP argues that SDOs having copyright protections in all instances, not just when incorporated by the government, is bad because it will lead to a fracturing of the internet. Losing these copyright protections would hence encourage SDOs to make their standards publicly available, which is good for internet unity. It also claims to solve the aff by arguing that copyright discourages innovation from SDOs, which is bad for all of the advantages.

The Incorporation by Reference CP argues that instead of giving SDOs copyright protections, the government should just incorporate select parts of the standard that give the public enough knowledge to avoid the Democracy DA but solves the advantages by ensuring that public actors can’t freely reproduce standards, which means that SDOs can still make money. There is a second version of the CP that would ensure that these standards are made freely available to the public, which you should read if you care concerned about Links to the Net Benefit.

Federal standards law and policy offers a number of benefits. It saves substantial time and money that federal agencies would otherwise have to invest to develop standards themselves. It gives agencies access to technical and engineering expertise that exists outside of the government. And it promotes uniformity in the standards that are used across the government and in the private sector to address the same subject matter. Most importantly, federal standards law and policy recognizes the reality that the United States has a vast, predominately private standardization system. This system emerged in the late 1800s and as it has grown and become more sophisticated a strong public-private partnership in standards has emerged. In the 1960s and 1970s, federal agency use of private standards in regulation became commonplace.

Easterlin rejects the idea that economic growth has been largely responsible for the health transition, and he tests a version of this hypothesis, the "McKeown hypothesis," which claims that the causal factor generating the health transition is specifically better nutrition from greater wealth and income," Easterlin argues that if this hypothesis holds, then we should observe a tight connection between rising levels of income and rising life expectancy. There should be a short time lag between them, and the time lag should be approximately the same. But the data do not show this, rather they show that in England and Wales it took several decades for life expectancy gains to be made, while in Sweden, for example, the gains came very quickly with the rising income that indicated the advent of capitalism in that country. Does this show what Easterlin wants to show, namely, that economic growth is not causally responsible for the historical health transition has now been accomplished in much of the world? I think not. There are other relevant differences between the cases. England was highly urbanized, which created conditions for increased spread of infectious diseases, as Easterlin recognizes. But this means that there was a higher bar for the wealth effect to overcome, it does not mean that there was no wealth effect. Thus, I think his rejection of the McKeown hypothesis is premature. Furthermore, the fact that Sweden's transition to capitalism came later gave it an advantage in the sense that it could learn from techniques adopted in England to improve health. Easterlin's alternative hypothesis is that the introduction of smallpox vaccines accounted for the progress in life expectancy in both cases. But there are two things to note about this alternative that are relevant here. First, even if this is the main cause of the health transition, the wide availability of smallpox vaccines - their production and distribution, communication about their use and effectiveness, and the responsiveness of public health agents to the desire of citizens for them - must at least in part be due to the conditions created by capitalism, including greater wealth and income, higher levels of education, and increasing legal and public infrastructure According to Jonathan Tucker, "a key breakthrough in the control smallpox in industrialized countries was the invention of the Icebox, which made it possible to refrigerate smallpox vaccine and thereby preserve its potency for long periods."4' Second, citing smallpox vaccines alone ignores another major contributor to female life expectancy (the statistic s he uses in his argument): falling fertility rates. Capitalism, 1 will argue, played a major role in encouraging and facilitating lower fertility rates, which in turn increased maternal and infant survival rates.

The second vulnerability that must be prioritized is economic. As of writing (February 2016), economies the world over are going through serious challenges. Decision-makers must create a more stable global market system that provides development and human security for all. Economic development (discussed in the final part of this chapter) will allow states and decision-makers the ability to become more resilient to other threats. Economic development is thus the second most important vulnerability to prioritize because it instigates the best use of resources. By using resources efficiently, states can amass capabilities to neutralize other sources of vulnerability such as health, military and political. To stem economic vulnerability requires some protection from capitalism’s inherent flux: the cycles of boom and bust. The economy must be made to serve the community; it must be able to serve the needs of society and therefore must be re-embedded: Our thesis is the idea of a self-adjusting market implied a stark utopia. Such an institution could not exist for any length of time without annihilating the human and natural substance of society; it would have physically destroyed man and transformed his surroundings into a wilderness. Inevitably, society took measures to protect itself, but whatever measures it took impaired the self-regulation of the market, disorganized industrial life, and thus endangered society in yet another way. (Polanyi 2001, 4) More regulation is therefore needed to ensure the stability of world society, not just in terms of political stability but in environmental and other areas too. Allowing a totally liberal world economy is too risky given the known costs. Proper mechanisms must be put into place to ensure sustainable growth rates to build resilience to systemic vulnerability and its reach or distribution across states. Decision-makers must see this as important but certain industries continue to fight for deregulation. These industries are too greedy to be allowed into political discourse as they pervert the minds of decision-makers (Stiglitz 2013). Greed works in the short term but it is ultimately short sighted: in the long run we are all dead after all. The other vulnerabilities are serious but are on their way to being stable. States understand the power of Ebola, Zika and cyber-security, for instance, to destroy the world. States are well down the road to developing infrastructure to absorb the chaos that can result from proliferation of such issues. This is because decision-makers fully grasp the importance of establishing control over epidemics and cyber-insecurity. Cyber-defensive measures are being bolstered and increasing power is being given to institutions and regimes to help fight and neutralize outbreaks. More can be done but I am hopeful society is moving in the right direction here. Health invulnerability has a great deal to do with mental health. Many terrorist movements take advantage of people who are clinically depressed due to their being ostracized from society. Mental health issues are part of overall health and must be treated like any other disease. For this to occur, certain stigma must disappear in favor of treatment. In this way, environment and health protection can reduce recruitment to malicious organizations through prevention. Military vulnerabilities coming from states and political vulnerabilities such as terrorist networks are the lowest priority. Strategies already exist to deal with these problems. We have established that containment is the best form of engagement for both issues. If decision-makers perceive this as a viable option, then all that is missing is the will to implement the strategy. States such as China, Russia and the USA position themselves aggressively; but war has not broken out yet because of diplomatic channels, as well as the presence of nuclear weapons that deter aggression. Containment allows for a degree of understanding and freedom of state autonomy if certain lines are not crossed. As a consequence, state conflict is not a high priority at this juncture. The same goes for violent political networks. These do not pose a serious challenge to any hegemonic state and are contained in specific areas of the world. Once we cut off access to wealth, then groups like Islamic State are sure to fizzle out eventually if left alone to their own violent devices. The ranked order of vulnerabilities necessitates a fundamental shift of priorities, especially in the realm of health and humanitarian focus. It will need serious cooperation at the global level. States must be made to work together on these matters. This is, therefore, a responsibility for great powers and hegemonic actors, those who possess enough power to create and defend the system. These systems-creative actors (see Chap. 2) must guide this prioritization process by leading the world against systems-destructive forces described. The capabilities of great powers must be used to solve systemic vulnerabilities. These interactions guide state behavior and are the defining principle of any systemic theory of international politics. Given the multiplicity of systemic vulnerabilities and their distribution across units, states must further link respective resources. The more resources available and in use, the more effectively states can solve problems. The use of securitization and prioritization discourse is essential to achieve this goal. It is here that we see the application of the reprioritization process with regards to systemic vulnerabilities. Such action is a product of the securitization/desecuritization process of prioritization as vulnerabilities are perceived as threatening to human survival. Decision-makers must not look at one source of vulnerability, but must rather take a structural approach to determine the most efficient way to deal with the wide array of problems that undermine survival. Hence, to recover well during times of systemic crisis, whether financial, the result of the rapid influx of refugees or after natural disasters, is essential in dealing with sudden and rapid systemic shocks. States that cannot deal with these on their own are considered weak and vulnerable. Great powers are those that are economically developed with the resilience necessary to adapt quickly to any event. The root of success in neutralizing systemic vulnerability is through systems-creation, that is, the formation of an international system that supports economic development. Economic development allows for the efficient use of scarce resources and is the key to resilience given systemic vulnerability. It allows a state the flexibility to absorb and defuse external shocks in all forms: economic, political, environmental and so forth. Henry Bruton’s modernist definition of economic development understands states to be economically developed if they are sufficiently flexible and diverse to adjust to change (Bruton 1965, 1). Development designates any increase in gross domestic product (GDP) that is sustainable, multidimensional and durable enough to endure economic shocks. Undeveloped countries may suffer from productivity discrepancies due to sudden shock. For example, an undeveloped country would be a monocultural economy dependent on one or two sources of wealth. Rapid fluctuations in commodity prices may send the country into macroeconomic chaos. A developed economy must be able to produce prosperity for the population given potential instability. Conversely, an underdeveloped state is “low income … predominantly a primary producing and consuming area … production is food grains and fibers, although in several countries mining is an activity of importance” (ibid., 88). Underdeveloped economies, then, possess vulnerabilities. Bruton notes this: “The rich country seems to have an economy that has growth built into it, while the poor country seems to have an economy in which ‘nongrowth’ is built into it” (ibid., 2–3). Development specifically deals with eradicating systemic issues that hamper growth (ibid., 3). Accordingly therefore, “economic development presents a means to weather exogenous and endogenous economic, environmental, political and social shocks endemic to vulnerable states … there is a clear dichotomy between these two concepts, vulnerability and development” (Kassab 2014, 66). Economic development improves the resilience of states to recover from systemic shock. It allows for best use of resources to counter threats and allows for the provision of human security, an important concept to stem the proliferation of violent political movements. Other vulnerabilities, such as health, cyber, environmental, can also be dealt with given available resources. In the event of war, a developed state could very well outlast a lesser developed, revisionist state. Hence, economic sustainability is the root of any state’s success in the face of systemic vulnerability.