When do limits on majorities enhance democratic rule, and when do they undermine it? Constraints on majorities are, of course, essential to modern democracy. Liberal democracy is not simply a system of majority rule: It combines majority rule and protection of minority rights. But constraints on electoral majorities can also subvert democracy. This essay offers a new framework for understanding the ambiguous relationship between countermajoritarianism and contemporary democracy. Lumping all countermajoritarian institutions into the same category can lead us to preserve and prescribe outdated and undemocratic institutions that distort political competition and may undermine democratic legitimacy. This essay makes the case for a robust but minimalist countermajoritarianism. Although special protections for powerful minorities may have helped to secure the historical passage to democracy, today the healthiest democracies empower majorities.
Thursday, January 2, 2025
“IP and Strategic Competition with China: Part IV – Patents, Standards, and Lawfare” | Committee Repository | U.S. House of Representatives
“IP and Strategic Competition with China: Part IV – Patents, Standards, and Lawfare” | Committee Repository | U.S. House of RepresentativesHearing: “IP and Strategic Competition with China: Part IV – Patents, Standards, and Lawfare”
Hearing: “IP and Strategic Competition with China: Part IV – Patents, Standards, and Lawfare”Subcommittee on Courts, Intellectual Property, and the Internet (Committee on the Judiciary)
By Mark Cohen （柯恒） on 2025/01/02
On December 18, 2024, I was honored to testify before the House Judiciary Committee, Subcommittee on Courts, Intellectual Property and the Internet. These hearings were on “IP and Strategic Competition with China.” This hearing was concerned with “Patents, Standards, and Lawfare.” I was joined by the Hon. Walter Copan, former Commerce Under Secretary in charge of NIST, Kent Baker, Esq., from Ublox, and Prof. Tom Cotter from the University of Minnesota Law School. Our written and oral testimony can be found here.
Perhaps it was the spirit of the season, the consensus on the Hill regarding China, or the higher level of bipartisanship found on IP issues - but this hearing showed remarkable bipartisanship and collegiality.
In my testimony, I pointed out that SEPs present unique challenges to China. Although patents are private rights, standards are intended to advance public goals. China’s subsidization of patent filings and participation in standards-setting bodies further align SEP litigation with the interests of the State. I also discussed my research involving the diverse translations of “FRAND” into Chinese.
I expressed concern about the potential erosion of national and most favored national treatment if we continue to treat China or Chinese companies differently from other countries. The first recourse in expressing our concerns over SEP litigation with China should be to negotiate and, if necessary, exploit multilateral mechanisms such as WTO dispute resolution procedures. Prof. Cotter wisely added that any retaliation brought by the United States for perceived unfair practices would likely elicit counterretaliation by China.
Prof. Cotter also pointed out that the United States has long utilized many tools we are currently complaining about, such as anti-suit injunctions (ASIs). While this is generally true, I also believe that China’s implementation of these practices is often markedly different from that of the United States. In the past several years, I have written about several “false friends” involving transplanted IPR activities undertaken in China compared to the United States. These transplants include anti-suit injunctions, administrative enforcement of IP rights, and even disciplinary action by local bar authorities against unethical IP lawyers.
At the time of the hearing, China’s ardor for ASIs seemed to have chilled since the EU filed a WTO dispute regarding China’s ASI practices. This informal suspension of ASIs may be coming to an end in light of the Supreme People’s Court issuing its first anti-ASI on behalf of Huawei against Netgear at the Unified Patent Court’s Local Division and the Munich 1 Regional Court, which was announced on December 24, 2024.
Kent Baker also pointed out the difficulties of determining essentiality in SEPs and the costs of participating in standards committees as an SME. Walter Copan underscored the role of the United States as a major exporter of innovation. He also raised concerns about regulatory frameworks in China and the European Union, which could undermine United States efforts to commercialize SEPs. One of the sub-topics of the hearing was a proposal for a separate SEP tribunal in the United States to make it a more competitive forum for hearing SEP cases, which was raised in the hearing and in discussions after the formal hearing was over.
Subcommittee on Courts, Intellectual Property, and the Internet (Committee on the Judiciary)
By Mark Cohen （柯恒） on 2025/01/02
On December 18, 2024, I was honored to testify before the House Judiciary Committee, Subcommittee on Courts, Intellectual Property and the Internet. These hearings were on “IP and Strategic Competition with China.” This hearing was concerned with “Patents, Standards, and Lawfare.” I was joined by the Hon. Walter Copan, former Commerce Under Secretary in charge of NIST, Kent Baker, Esq., from Ublox, and Prof. Tom Cotter from the University of Minnesota Law School. Our written and oral testimony can be found here.
Perhaps it was the spirit of the season, the consensus on the Hill regarding China, or the higher level of bipartisanship found on IP issues - but this hearing showed remarkable bipartisanship and collegiality.
In my testimony, I pointed out that SEPs present unique challenges to China. Although patents are private rights, standards are intended to advance public goals. China’s subsidization of patent filings and participation in standards-setting bodies further align SEP litigation with the interests of the State. I also discussed my research involving the diverse translations of “FRAND” into Chinese.
I expressed concern about the potential erosion of national and most favored national treatment if we continue to treat China or Chinese companies differently from other countries. The first recourse in expressing our concerns over SEP litigation with China should be to negotiate and, if necessary, exploit multilateral mechanisms such as WTO dispute resolution procedures. Prof. Cotter wisely added that any retaliation brought by the United States for perceived unfair practices would likely elicit counterretaliation by China.
Prof. Cotter also pointed out that the United States has long utilized many tools we are currently complaining about, such as anti-suit injunctions (ASIs). While this is generally true, I also believe that China’s implementation of these practices is often markedly different from that of the United States. In the past several years, I have written about several “false friends” involving transplanted IPR activities undertaken in China compared to the United States. These transplants include anti-suit injunctions, administrative enforcement of IP rights, and even disciplinary action by local bar authorities against unethical IP lawyers.
At the time of the hearing, China’s ardor for ASIs seemed to have chilled since the EU filed a WTO dispute regarding China’s ASI practices. This informal suspension of ASIs may be coming to an end in light of the Supreme People’s Court issuing its first anti-ASI on behalf of Huawei against Netgear at the Unified Patent Court’s Local Division and the Munich 1 Regional Court, which was announced on December 24, 2024.
Kent Baker also pointed out the difficulties of determining essentiality in SEPs and the costs of participating in standards committees as an SME. Walter Copan underscored the role of the United States as a major exporter of innovation. He also raised concerns about regulatory frameworks in China and the European Union, which could undermine United States efforts to commercialize SEPs. One of the sub-topics of the hearing was a proposal for a separate SEP tribunal in the United States to make it a more competitive forum for hearing SEP cases, which was raised in the hearing and in discussions after the formal hearing was over.
I had previously been honored to testify at the first hearing in this series on March 8, 2023. At that time, I focused on how the United States could become more efficient and competitive with China’s IP system. Jamieson Greer, President Trump’s nominee to be the next U.S. Trade Representative, also testified then. The record of the first hearing is available here.
Friday, December 27, 2024
Thursday, December 26, 2024
NJ Law Journal Editorial Vigorous Senate Review for Patel - FBI Director Nominee
Vigorous Senate Review for the FBI Director Nominee
By the New Jersey Law Journal Editorial Board
December 20 2024
We hope that our senators will oppose any suggestion of an unvetted appointment during the Senate’s recess, and that Mr. Patel’s qualifications for this important post will be subjected to rigorous scrutiny by the Senate.
In 1968, Public Law 90351 provided that, at the conclusion of the service of longtime FBI director J. Edgar Hoover, the director would be nominated by the president for a 10-year term subject to confirmation by the Senate. The purpose of the law was to affirm the independence of the chief national law enforcement agency. The attorney general serves at the pleasure of the president. But the FBI director is outside the ordinary chain of command.
One result of that reform has been that directors have generally been reliably independent of the sitting president, whose terms of office the director is sure to exceed even if the new director is appointed at the beginning of a presidential term.
Kashyup Patel, a former public defender and federal prosecutor, now serves as senior director of the Counterterrorism Directorate. That would be reassuring if it were not for the fact that Patel in 2023 published the book "Government Gangsters," a partial memoir that criticizes the "deep state." In his book, Patel wrote a list of 60 people who, he believed, were members of the "Deep State," which included: Joe Biden, Kamala Harris, Hillary Clinton, Merrick Garland, Bill Barr, Robert Mueller, James Comey, Mark Esper, and Robert Hur, among others.
The political independence of the FBI is thus threatened by the appointment of a person such as Patel. But the current director, Christopher Wray—appointed by President Trump, who has publicly soured on him—has regrettably decided to resign. Patel was an aide to the House Intelligence Committee run by Rep. Devin Nunes, a fierce ally of then-President Trump. Patel also served briefly on the National Security Counsel and Defense Department staffs. Patel was the primary author of the partisan 2018 Nunes memo, alleging the FBI and Justice Department had erred in obtaining a warrant to surveil a former Trump campaign volunteer, a claim later shot down by the Department of Justice’s Inspector General.
A former Justice Department lawyer with 17 years of practice at Atlanta’s King & Spalding, the FBI, under Director Wray’s leadership since 2017, has competently pursued the Justice Department’s mission to keep our country safe, protect civil rights, and uphold the rule of law. That’s not to say the agency’s actions have always been perfect, but it is a daunting task leading the agency’s efforts to confront a broad range of threats from nation-state adversaries and foreign and domestic terrorism to violent crime, cybercrime, and financial crime. There are few leadership positions more central to keeping the American people safe than the director of the FBI.
Patel is another story altogether. Shortly after the first Trump administration, Patel launched Fight with Kash (now the Kash Foundation), an organization that funds defamation lawsuits and sells a wide variety of merchandise, including branded socks and water bottles, sweatshirts and baseball hats, a deck of playing cards with Trump as the ace and a bumbling Joe Biden in a jester costume as the king. He has spent recent years as a consultant and on the board of the president-elect’s media group, which owns Truth Social, and writing books that lionize the president-elect.
Though few would say today, with John Marshall, that they consider "Congress to be my government," we hope that our Sens. Andy Kim and Cory Booker will oppose any suggestion of an unvetted appointment during the Senate’s recess, and that Mr. Patel’s qualifications for this important post will be subjected to rigorous scrutiny by the Senate.
Sunday, December 22, 2024
Leaders approach the Horn - Vendée Globe 2024
Six weeks into the race the headline today is that records are about to fall at Cape Horn - but the solo sailors struggle with fatigue. If you don't know the Vendee Globe - the rules are simple. Depart France (Vendee Department) circle the globe, respecting the antarctic exclusion zone, return to Sable D'Olonne.
Single-handed. No outside assistance.
Ranking | Vendée Globe 2024TRACKER
Of the forty who started 36 are still racing.
Leader Yoanne Richomme has averaged 23.4 knots over the past 24 hours. He is approaching the Horn.
Distance to finish7556.57 NM
Charlie Dalin, 15 NM behind has averaged 24.11 knots over the past day.
At the back of the fleet Denis Van Weynbergh is averaging 11. kts over the past day.
- Distance to finish14332.60 NM
- Distance to leader6776.03 NM
The differences reflect, of course, skill, and luck. But mostly equipment as the fastest boats are foiling.
There are still five women racing. The top three can be judged by the numbers.
- Speed17.65 KTS
- 24h average speed16.89 KTS
- Distance to finish9209.54 NM
- Distance to leader1652.98 NM
- Speed12.06 KTS
- 24h average speed14.57 KTS
- Distance to finish10400.53 NM
- Distance to leader2843.96 NM
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