Search the archive.

But the existing order is more resilient than this assessment suggests. There is no doubt that Trump represents a meaningful threat to the health of both American democracy and the international system. And there is a nonnegligible risk that he could drag the country into a constitutional crisis, or the world into a crippling trade war or even an all-out nuclear war. Yet despite these risks, rumors of the international order’s demise have been greatly exaggerated. The system is built to last through significant shifts in global politics and economics and strong enough to survive a term of President Trump.

This more optimistic view is offered not as comfort but as a call to action. The present moment demands resolve and affirmative thinking from the foreign policy community about how to sustain and reinforce the international order, not just lamentations about Trump’s destructiveness or resignation about the order’s fate. No one knows for certain how things will turn out. But fatalism will become a self-fulfilling prophecy.

Complacency, Appeasement, Self-destruction, and the New Cold War

It could be argued that the policies proposed here to deal with the international problems, whether real or imagined, presented by China, Russia, and Iran constitute exercises not only in complacency, but also in appeasement. That argument would be correct. As discussed in the Prologue to this book, appeasement can work to avoid military conflict as can be seen in the case of the Cuban missile crisis of 1962. As also discussed there, appeasement has been given a bad name by the experience with Hitler in 1938.

Pushing back against Trump’s foreign policy is an important goal. But moving forward requires a more serious analysis than claiming that the “liberal international order” was the centerpiece of past U.S. foreign-policy successes, and thus should be again. Both claims are flawed. We need to understand the limits of the liberal international order, where it previously failed to deliver benefits, and why it offers little guidance for many contemporary questions.

First, advocates of the order tend to skim past the policies pursued under the liberal order that have not worked. These mistakes need to be directly confronted to do better in the future.

b) Can’t be existential---the worst-case models assume impossible emissions levels with no mitigation or adaptation

c) Timeframe---impacts are slow which allows time to adapt and manage the consequence

The most extreme contrarian position is, of course, to deny one or both key conclusions of the IPCC: the reality of global warming or the human contribution to it. However, most environmental optimists accept these two key conclusions but raise other problems with the panel’s discussion of the social effects of climate change and even more so with popular interpretations of the panel reports. For instance, Hausfather & Peters (2020), by no means ‘climate deniers’, decry the common use of choosing the high-risk [scenario] RCP8.59 to illustrate ‘business as usual’ as misleading.

The causal chains from climate change to the proposed effects on human beings are long and complex, and the uncertainty increases every step of the way. In the literature on the social effects of climate change, including the IPCC reports, statements abound that something ‘may’ lead to something else, or that a variable ‘is sensitive to’ another, without any guidelines for how to translate this into probabilities (Gleditsch & Nordås, 2014: 87f). Uncritical use of the precautionary principle, where any remotely possible calamity unwittingly becomes a probable event, is not helpful.

What will advances in artificial intelligence (AI) mean for national security? This year in War on the Rocks, technical and non-technical experts with academic, military, and industry perspectives grappled with the promise and peril of AI in the military and defense realms. War on the Rocks articles discussed issues ranging from the different ways international competitors and military services are pursuing AI to the challenges AI applications present to current systems of decision-making, trust, and military ethics. War on the Rocks contributors added to our understanding of the trajectory of military AI and drew attention to critical remaining questions. A key takeaway is that technical developments in AI probably represent less than half the battle in attempting to effectively integrate AI capabilities into militaries. The real challenge now, both in the United States and abroad, is going beyond the hype and getting the right people, organizations, processes, and safeguards in place.

How Militaries Will Apply AI

Yet despite epidemic after epidemic, despite mass killers like smallpox and the 1918 flu, at no point has disease threatened humans with extinction. Even the Black Death, likely the most concentrated epidemic of all time, now appears as little more than a minor downturn in what has otherwise been a bull market for long-term human population growth. That’s true for animals as well. The International Union for Conservation of Nature reports that of the 833 plant and animal extinctions that have been documented since 1500, less than 4 percent can be attributed to infectious disease. Those species that were eradicated by disease tended to be small in number and geographically isolated—very much unlike human beings, who are both numerous and have spread to every corner of the world.38

With the exception of HIV—which can now be managed as a chronic condition with antiviral drugs—every major epidemic mentioned above took place before the dawn of modern medicine, before the development of antibiotics and widespread vaccines. Smallpox was even fully eradicated from the wild in 198039—the only known samples of the virus are kept at highly secure government facilities in Atlanta and Koltsovo, Russia.40 Plague is now so rare that when it breaks out in countries like Madagascar, it makes global news—yet fewer than 600 deaths from the disease were reported between 2010 and 2015. Studies have shown that most of the fatalities from the 1918 flu were actually due to secondary bacterial infections that today could be controlled by antibiotics,41 which were introduced less than a century ago. Influenza pandemics remain the great fear of infectious disease experts, but the most recent one in 2009 killed only about 284,000 people worldwide.42 That was fewer than the number of people who die from seasonal flu in an ordinary year.43

Are we safe now from events like this? Or are we more vulnerable? Could a pandemic threaten humanity’s future?10

The Black Death was not the only biological disaster to scar human history. It was not even the only great bubonic plague. In 541 CE the Plague of Justinian struck the Byzantine Empire. Over three years it took the lives of roughly 3 percent of the world’s people.11

The secrecy regarding the cyber capabilities and activities of the United States and China creates difficulty in estimating the relative balance of cyber power across the Pacific. Nevertheless, the United States appears to be gaining an increasing advantage. For every type of purported Chinese cyber threat, there are also serious Chinese vulnerabilities and growing Western strengths.

Much of the international cyber insecurity that China generates reflects internal security concerns. China exploits foreign media and digital infrastructure to target political dissidents and minority populations. The use of national censorship architecture (the Great Firewall of China) to redirect inbound internet traffic to attack sites such as GreatFire.org and GitHub in March 2015 is just the latest example of this worrisome trend. Yet prioritizing political information control over technical cyber defense also damages China's own cybersecurity. Lax law enforcement and poor cyber defenses leave the country vulnerable to both cybercriminals and foreign spies. The fragmented and notoriously competitive nature of the Communist Party state further complicates coordination across military, police, and regulatory entities.

Last summer, the U.S. Supreme Court seemed to make it much harder to bring privacy lawsuits, including data breach class actions, in federal court. But after about eight months of lower court decisions, the picture seems to be one of complexity rather than certainty.

A quick primer on standing, for lawyers and non-lawyers alike

The significance of this inter-court dialogue and the use of foreign law and practice in domestic courts is a hotly contested issue at a time when the reaffirmation of national sovereignty through the rise of extremist values and political and economic introspection are in the ascendency. Famously, just over a decade ago, Justices Stephen Breyer and Antonin Scalia debated the use of foreign law by the U.S. Supreme Court, with Scalia's more insular approach seemingly winning the day despite the opposing preferences of other Justices, such as Breyer, Ginsburg, and Kennedy. Since thenJustice Breyer has restated the case for the judge to also be a "diplomat" and to learn from foreign legal ideas, particularly the European constitutional concept of proportionality when adjudicating on the First Amendment. In a similar way, the members of the Court of Justice of the European Union have also struggled with the use of foreign legal norms given the more precarious nature of its jurisdiction vis-A-vis twenty-eight member states. In fact, no direct citation to the U.S. Supreme Court appears in the judgments of the Court of Justice of the European Union even though some opinions of its Advocates General occasionally cite to U.S. jurisprudence. This is in sharp contrast from the other regional European court, the European Court of Human Rights based in Strasbourg, which openly cites the U.S. Supreme Court in its decisions.

The lack of this overt kind of influence of the U.S. Supreme Court on the Court of Justice of the European Union and vice-versa does not necessarily mean that they do not employ similar ideas and modes of reasoning. Some scholars have attempted to trace some of these more invisible or cultural cross-influences through the lenses of transnational dialogue among courts, migration of constitutional ideas, and judicial comparativism as judicial diplomacy. Yet the current literature on comparative constitutional law remains silent on the deep cultural and ideological connections between the Court of Justice of the European Union and the U.S. Supreme Court. Our questioning during the following conversation sought to evidence the concrete benefits and advantages of this judicial dialogue and to impart to the audience the value and normative significance of the courts' relationship at a time when judicial independence, and potentially the rule of law itself, are being subverted. We hope that judicial exchanges, like this one between Associate Justice Stephen Breyer and President Koen Lenaerts, can stem the tide of isolationism that has befallen the Western world.

The Patent Trial and Appeal Board (PTAB) is now accepting petitions for expedited resolution of ex parte appeals. Launched last week, the “Fast-Track Appeals Pilot Program” aims to decide the average patent appeal within six to eight months faster than the current average. The year-long program will grant no more than 125 petitions per quarter and just 500 total per fiscal year. In order to keep appeals on schedule, oral hearings under the program will be expedited and, once scheduled, will not be rescheduled or relocated. The required petition fee has been set at a modest $400. Patent applicants traditionally have opted to continue wrestling with a challenging examiner rather than be held up even longer by the appeal process. If this new fast-track program delivers decisions as quickly as advertised, there could be a considerable shift in thinking among patent applicants in all industry sectors but particularly in rapidly changing, highly competitive sectors, such as the high tech industry. The Fast-Track Appeals Pilot Program can be seen as an extension of the current Track One prioritized examination program, which has drastically reduced the patent review process. With the two “faster” programs in place, applicants should be able to obtain a decision on their patent in about half the time, according to the USPTO. However, expediting the appeal process is only beneficial if the patent case is well-prepared by experienced legal counsel who can make strong arguments that support patentability. Patent applicants interested in the Fast-Track Appeals Pilot Program should work closely with legal counsel before appealing. No new evidence or substantive amendments, for example, can be entered for an appeal, so it remains important to review and further prepare the file of the pending patent application with counsel prior to initiating any such appeal. Most importantly, quality counsel will be able to help clients decide if an expedited appeal may be the best next step.

Patents are supposed to encourage innovation. They give inventors the opportunity to profit from their ideas before others copy them. But this protection also opens the door to opportunists.

Patent assertion entities (PAEs)—more commonly called “patent trolls”—have made it their business model to acquire intellectual property without the intention of using it. They instead sell or license patents, and in some cases sue unsuspecting users.

FROM an early age we are taught the importance of fighting fairly. But as the vast number of frivolous patent lawsuits have shown, too many people are rewarded for doing just the opposite.

The onslaught of litigation brought by “patent trolls” — who typically buy up a slew of patents, then sue anyone and everyone who might be using or selling the claimed inventions — has slowed the development of new products, increased costs for businesses and consumers, and clogged our judicial system.

To others, PAEs hold the assets of failed businesses that got lucky with a broad patent. They clog the courts to extort value from companies that actually make things, serve customers, and create jobs. They spend and risk nothing while taxing and sometimes even endangering the survival of small companies –55% of unique defendants make $10M or less in revenue – of whom they demand nuisance value settlements – or else.

PAEs are in the business of patent hold-up.

A “patent troll” does not make money by manufacturing, innovating or transferring technology, but by holding patents and suing those who do. Patent trolls demand money to use products they did not create. Patent trolls are so notorious that they have been accused of “hijack[ing] someone else’s idea and see[ing] if they can extort some money.” And worse.

But demonizing patent “trolls” overlooks their compelling economics. Using economies of scale and contingent fee lawyers, patent assertion entities (PAEs) have dismantled traditional obstacles to suit. For years, patent holders couldn’t monetize their patents because it was too risky and large companies ignored their demands.

The Supreme Court’s recent ruling in TC Heartland LLC v. Kraft Foods Group Brands LLC, 137 S. Ct. 1514, 122 U.S.P.Q.2d 1553 (2017), has quickly and dramatically reshaped the landscape for personal jurisdiction and venue in U.S. patent cases. As a result, the U.S. International Trade Commission, with its unique jurisdictional requirements, should now become an even busier forum for fast moving patent disputes.

In TC Heartland, the Supreme Court considered where proper venue lies for a patent infringement lawsuit brought against a domestic corporation. Id. at 1514-15. For many years, the U.S. Court of Appeals for the Federal Circuit has broadly construed the patent venue statute, 28 U.S.C. § 1400(b), incorporating into its definition the general venue statute’s broader statutory definition of corporate residence. 28 U.S.C. § 1391(a), (c); see also VE Holding Corp. v. Johnson Gas Appliance Co., 917 F.2d 1574, 16 U.S.P.Q.2d 1614 (Fed. Cir. 1990). The result has been a gradual widening reach of the patent venue statute to draw corporate defendants into patent suits in jurisdictions favorable to plaintiffs—such as, famously, the U.S. District Court for the Eastern District of Texas—but to which the defendant corporation often has a tenuous connection. In TC Heartland, the Supreme Court found that the Federal Circuit’s broad construction of corporate residency does not square with Congress’s mandate in 28 U.S.C. § 1400(b), and that corporate “residency” for purposes of the patent venue statute is limited to the state of incorporation. 581 at 1514, citing Fourco Glass Co. v. Transmirra Products Corp., 353 U.S. 222, 226, 113 U.S.P.Q. 234 (1957).

Patent trolls aren’t a myth. They aren’t a bedtime story. Ask a software developer—they’re likely to know someone who has been sued or otherwise threatened by one, if they haven’t been themselves.

Unfortunately, the new director of the U.S. Patent and Trademark Office (USPTO) is in a serious state of denial about patent trolls and the hurt they cause to technologists everywhere. Today a number of small business owners and start-up founders have submitted a letter [PDF] to USPTO Director Andre Iancu telling him that patent trolls remain a real threat to U.S. businesses. Signatories range from mid-sized companies like Foursquare and Life360 to one-person software enterprises like Ken Cooper's. The letter explains the harm, cost, and stress that patent trolls cause businesses.

Accordingly, inflationary systems incentivize the speculative proliferation of low-quality patents, which clog the Patent Office and result in parasitic patent-trolling activity. Deflationary systems, by contrast, incentivize prudence in patenting decisions, focusing scarce monetary resources on protecting only high-value inventions and reducing the profitability of parasitic patent-trolling. Transitioning from our current inflationary system to a deflationary system based on bitcoin would thus likely heal many of the ailments with the patent system we see today.

IV. CONCLUSION

The Problem of Court Clog¶ The first concern is the easiest to set to rest. Whenever a proposal to expand access to courts and tribunals is made, the first criticism is often a practical one: the "the oft-expressed fear that a "host of parties' will descend upon it and render its dockets "clogged' and "unworkable.'" n208 It is clearly the prospect of such litigation that has worried the Supreme Court when confronted with extraterritorial claims in the past. n209¶ The argument is practically self-refuting. The answer to the threat of court clog is not to create an arbitrary device to exclude plaintiffs with legitimate claims. The answer is to expand the capacity of courts. In any event, it is hard to see how the criticism has any traction: whether the motion to dismiss is for lack of standing or for some other reason, the motion will be submitted and must be decided. A fact-intensive inquiry into the substantiality of connections does not lend itself to quick disposition. n210