The Capture of International Intellectual Property Law Through The U.S. Trade Regime – Article by Margot E. Kaminski

From Volume 87, Number 4 (May 2014)

For years, the United States has included intellectual property (“IP”) law in its free trade agreements. This Article finds that the IP law in recent U.S. free trade agreements differs subtly but significantly from U.S. IP law. These differences are not the result of deliberate government choices, but of the capture of the U.S. trade regime.

A growing number of voices has publicly criticized the lack of transparency and democratic accountability in the trade agreement negotiating process. But legal scholarship largely praises the ‘fast track” trade negotiating system. This Article reorients the debate over the trade negotiating process away from discussions of democratic accountability to focus instead on the problem of regulatory capture. The Office of the U.S. Trade Representative (“USTR”) is exempt from the Administrative┬áProcedure Act and functionally exempt from the bulk of the Federal Advisory Committee Act. As a result, the USTR is likely to be captured by private parties through information asymmetry and to negotiate against the public good. Subject matter areas that are subject to collective action problems, such as intellectual property law, are particularly likely to be captured in the USTR.

The institutional capture of the USTR has affected the substance of exported IP law. Negotiators are tasked with exporting U.S. law, but deliver the law in versions favorable to vested interests. Negotiators change unfavorable domestic rules into more pliable international standards, codify favorable domestic judicial interpretations as international rules, and omit parts of domestic law that balance IP protection against other values. These distortions arise because the USTR engages in “regulatory paraphrasing”: it paraphrases the current state of U.S. law rather than exporting the words of U.S. statutes. This Article identifies examples of this captured paraphrasing, explores its domestic and international consequences, and proposes that Congress reinstate FederalAdvisory Committee Act requirements to prevent this capture from continuing.



International Law and the Limits of Macroeconomic Cooperation – Article by Eric A. Posner & Alan O. Sykes

From Volume 86, Number 5 (July 2013)

The macroeconomic policies of states can produce significant costs and benefits for other states, yet international macroeconomic cooperation has been one of the weakest areas of international law. We ask why states have had such trouble cooperating over macroeconomic issues when they have been relatively successful at cooperation over other economic matters such as international trade. We argue that although the theoretical benefits of macroeconomic cooperation are real, in practice it is difficult to sustain because optimal cooperative policies are often uncertain and time variant, making it exceedingly difficult to craft clear rules for cooperation in many areas. It also is often difficult or impossible to design credible self-enforcement mechanisms. Recent cooperation on bank capital standards, the history of exchange rate cooperation, the European monetary union, and the prospects for broader monetary and fiscal cooperation all are discussed. Finally, we contrast the reasons for successful cooperation on international trade policy.