Mila Versteeg & Emily Zackin, Constitutions Un-entrenched: Toward an Alternative Theory of Constitutional Design
, Am. Pol. Sci. Rev.
(forthcoming 2016), available at SSRN
In their recent paper in the American Political Science Review, Versteeg and Zackin offer an important contribution to evolving debates on constitutional design, convergence and diffusion. They suggest that, far from being the only model in circulation in global constitutional thinking, the US constitutional model of highly abstract and entrenched constitutionalism is in fact no longer even the dominant model: at a US state level, and globally, a quite different model of very specific and flexible constitutionalism is in the ascendancy. This model blurs the line between constitutions and ordinary legislation. It also reflects a quite different kind of thinking about the relationship between constitutions, democracy, and the people: rather than empowering courts to interpret vague or abstract constitutional guarantees, and entrenching those decisions against repeal by ordinary democratic majorities, Versteeg and Zackin suggest that this model seeks to constrain courts, legislators and executive actors to act in line with the preferences of a majority of citizens.
In this sense, it represents a quite different take on traditional understandings of democracy and distrust: it is the expression of a form of popular distrust of elite institutions generally, rather than more particularized distrust of legislators of the kinds such as John Hart Ely envisaged. Versteeg and Zackin further argue that there is a close logical relationship in this context between a preference for constitutional specificity and flexibility: specific constitutions may help popular majorities control elite actors, but they are also more likely to require active updating by citizens themselves, rather than elite actors. As I have also suggested in prior work, whatever the scope for courts and legislators to update of a constitutional standard by way of ‘common law interpretation’, or polycentric forms of interpretation, there is far less scope to apply such approaches to more specific rule-like constitutional provisions.
In addition to identifying this new model of flexi-specific democratic constitutionalism, and its logical inter-dependence, Versteeg and Zackin offer compelling evidence of its increasing diffusion or predominance both at a US state constitutional level and globally. Indeed, this empirical dimension to their project is particularly wide impressive, and no doubt one of the reasons the piece found a home in the APSR. One of the things I also particularly liked about the piece in this context is that it combines both state-of-the-art large and empirical approaches with a more historical, qualitative analysis of the historical origins of various flexi-specific constitutional provisions: drawing on Zackin’s earlier archival work for her excellent book, Looking for Rights in All the Wrong Places, the piece quotes from a range of legislative, newspaper and scholarly sources from the late 18th and early 19th century as to the origins of many specific constitutional provisions.
While I am very sympathetic to their project, their work did, however, raise two broad questions for me, in part connected with my own prior work on constitutional specificity and amendment. First, would it be useful to further disaggregate the model of flexi-specific constitutionalism into two broad categories: one aimed at the control of legislative and executive decision-making, and another at the control of courts? The two models potentially have somewhat different origins, or logics: in most cases, it seems likely that attempts to control legislatures or executive officials will arise out of the kind of principal-agent situation Versteeg and Zackin identify. I was reminded of this only last week visiting Chicago, when I came across a letter to Illinois residents outlining the scope of the proposed amendment to section 11 Art IX of the Illinois State Constitution: this amendment is very long, detailed, and if successful, could still be relatively easily repealed – and is all about the relationship between voters and their elected representatives. It attempts to limit the ability of certain local units to use funds appropriated for transportation for other purposes.
But for provisions speaking more directly to courts, in some cases at least, the origins of such provisions may be somewhat different: they might originate in a belief that it should be legislatures rather than courts that decide certain questions, or in a concern to provide ‘insurance’ for certain legislative policies against the risk of judicial invalidation. In some cases, provisions that purport to authorize certain forms of legislative action, and thereby prevent courts from invalidating such action, might thus have quite different origins or underpinnings to provisions that require forms of legislative action. A good example concerns the kinds of labour rights provisions found in various state constitutions in the US and discussed by Versteeg and Zackin at some length: some of these provisions were clearly directed at requiring state legislatures to limit working hours (mandatory by-law clauses), but others to insulating legislative action from judicial invalidation (permissive by-law clauses).
Second, I wonder whether flexi-specific constitutions are in fact a true alternative model of constitutional design, or something closer to an important sub-type or sub-form of constitutional design. As an empirical matter, it is not clear that the increasing specificity—and amendment—of many US state and global constitutions is in fact distributed evenly across all areas of constitutional law. Rather, it may well be that flexi-specificity is concentrated in certain areas – dealing with federalism, various legislative and executive policies, and not the fundamental democratic, separation of powers rule of law, or rights-based provisions of a constitutions. In Brazil, for example, as an important example of the trend Versteeg and Zackin identify, there have been large numbers of constitutional amendment since the adoption of the 1988 Constitution, but almost none of these amendments have touched what one might call ‘the basic structure’ of the Brazilian Constitution. In the US, state constitutions have also become increasingly specific against the backdrop of a quite abstract, and entrenched, set of federal constitutional guarantees that clearly modify or set limits on the scope of the flexi-specific state constitution. Think of the recent decision of the US Supreme Court in Obergefell: the Court held that the attempt to create increasingly specific prohibitions on same-sex marriage under state constitutions was inconsistent with the more abstract and entrenched guarantee of equal protection under the Fourteenth Amendment, and thus invalid and ineffective as a form of constitutional change.
Theoretically, we might have two broad reasons to doubt whether flexi-specific constitutions can succeed as a standalone constitutional model. First, if constitutions are extremely long and detailed, citizens may have difficulty understanding them, and thus be relatively unlikely to identify and defend the constitution. (Indeed in other important work, Versteeg has shown with Stephanopoulos that the ability to understand a constitution is a key determinant of constitutional identification.) This may itself mean that flexi-specific constitutions are far more likely to be replaced than more general, abstract ones, so that there is a kind of Darwinian pressure toward more abstract rather than specific constitutions.
Second, if constitutions are too specific, they may ultimately end up creating forms of inconsistency or overlap that necessarily require courts themselves to resolve a range of interpretive ambiguities. Tom Ginsburg and I make this point in our work on insurance swaps: we suggest that if drafters adopt highly specific but conflicting provisions, this effectively delegates to courts the task of resolving relevant conflicts. I have also made a similar argument about attempts to codify certain constitutional exceptions or carve-outs, and both the ambiguities this creates, and the degree to which ambiguity can be empowering rather than constraining of constitutional courts.
Ultimately, this may mean that for flexi-specific constitutions to endure, and/or achieve their aims in terms of judicial constraint, they cannot be entirely standalone models of constitutional design. Instead, they must be nested within a broader, more abstract and entrenched constitutional framework.
Constitutional ‘tiering’ is already a relatively familiar idea in the context of the design of constitutional amendment rules: as Richard Albert has pointed out, there are a range of constitutions worldwide that adopt different levels of entrenchment or flexibility, based on the nature of the question at stake. David Landau and I have also recently suggested that constitutions often adopt a tiered approach to constitutional language, as well as entrenchment: they adopt quite specific provisions for a range of routine or ordinary constitutional matters, but more abstract, parsimonious language for core constitutional values designed to bind a community together, or protect the basic constitutional or democratic order.
Tiering of this kind may be done better or worse in different constitutions, but it seems a relatively common feature of democratic constitutional design: just think of the role of preambles or constitutional value statements. As Landau and I have pointed out in the context of constitutional entrenchment debates, tiering of this kind can also often occur ex post – by judges selecting certain provisions for special reinforcement and validation – as well as ex ante.
In sum, I am highly persuaded by both the empirical evidence Versteeg and Zackin present, and by their claim that the field of comparative constitutional studies needs to do more to recognise and grapple with the increasing centrality of flexi-specific forms of constitutionalism. But I also wonder if we shouldn’t divide this trend into two types (legislative and judicial-facing), and do more to recognise it as a form of nested democratic constitutional development, which is best understood as part of a tiered approach to both constitutional amendment and language.
Often formulating a legal policy response to a problem starts with finding the correct vocabulary. While complex economics, political, and sociological crises do not get managed with magic words, failure to give a name to a problem makes solutions elusive. In the case of international intellectual property, the problem of overly expansive intellectual property rights, sometimes adopted by nation states under trade and finance pressures, is seen solely as a solution to the ubiquity of piracy and theft of economic value. Values of access and commons management offer some countermeasures to broad property rights. But these responses sometimes feel piecemeal and less than systematic.
Enter Professor Sam Halabi, a scholar and teacher of international health law at University of Tulsa Law School, shifting to University of Missouri, Columbia Law School in January 2017. His recent article in the Tulane Law Review is one I like a lot, and I hope others active in international intellectual property law and health policy do as well. Professor Halabi’s contributions are conceptual and linguistic. International Intellectual Property Shelters, although with unfortunate resonances of “tax shelters,” describes pockets created by treaties and national law of exceptions to strong intellectual property rights. These pockets permit access to medicines, promotion of biodiversity, regulation of neonatal care, and control of tobacco—each threatened by the rampant spread of intellectual property rights. Upon this neologism, Professor Halabi delineates an established international intellectual regime that governs and limits intellectual property rights. His article not only informs us about the key features of this regime and the legal, political, and economic mechanisms that drive it.
Professor Halabi’s article defines a unique and important niche in the field of international law. At the intersection of intellectual property and health law, his work illustrates how institutions are designed at the national and global levels to regulate intellectual property rights for the public interest. What the article reveals is a rich array of transnational regulations, mediated through treaties that support national legislation to limit intellectual property rights in the arena of health and safety. The Tulane piece provides several examples, including the 2002 Doha Declaration on Health and Safety, proposed treaty on medical research and innovation, the WHO’s influenza pandemic preparedness framework, and international codes for the marketing of breakfast. His two other examples on biodiversity and tobacco control illustrate for our purposes the tone and structure of his arguments.
The United Nations Convention on Biodiversity, Professor Halabi reminds us, has created an international framework that has served to create national legislation regulating patent rights in agriculture and genetic resources. These regulations promote regional diversity in agricultural products through treaties that allow for the saving and reuse of genetically modified seeds by farmers. In addition, they serve to allow multinational corporations to make use of traditional agricultural knowledge local to the community and share the benefits of commercialization with subnational constituencies, such as indigenous communities, farmers, and holders of traditional knowledge. Such benefit sharing serves to direct profits from exploitation of traditional knowledge back to the national economy from multinationals.
Tobacco control has also been the subject of an emerging international regulatory regime. This regime is marred by economic and legal tensions between tobacco companies seeking new markets for their products and national governments desiring to stem the adverse health consequences from tobacco consumption. While the agreements over biodiversity center on patent rights, limitations on trademark rights and tobacco advertising are the basis for the international regulatory system for tobacco. The development of this system, however, has been far from smooth as tobacco companies challenge the restrictions on their trademarks, through such requirements as plain packaging, by alleging violations of bilateral investment treaties with national governments. So far, the efforts of the companies have not been successful, and regulations on tobacco for the goals of health and safety serve as another example of an international intellectual property shelter regulating rights for the public interest.
As Professor Halabi describes, these shelters “regulate intellectual property by creating conditions for access to patentable subject matter, elimination or substantially modifying trademarks at their core level (i.e. by source identification), and redistributing the benefits of intellectual property that either draw from the resources of low- and middle-income countries or disproportionately affect their welfare, or both.” (P. 964.) He concludes, “international intellectual property shelters mediate the creation, flow, and concentration of global wealth between wealthy and low- or middle-income countries.” (P. 971.)
Professor Halabi has identified an important set of developments in international intellectual property law. He has also clearly delineated how these developments are implemented in practice, both at the transnational level through treaty regimes and at the national level through legislation. This article should receive attention from a range of scholars, especially those working in international intellectual property law and health law. Professor Halabi’s work also has much to offer for policymakers and those interested in institutional design of regulations. I look forward to seeing how Professor Halabi develops this line of research, especially as he moves from article to book. The end product should present a much-needed normative and political framework for understanding international intellectual property. For now, however, this article provides much fodder for debate among scholars and policymakers.
In her article Precarious Desires and Ungrievable Lives: Human Rights and Postcolonial Critiques of Legal Justice, Ratna Kapur argues that for the vast majority of subordinated peoples, faith in international human rights and, indeed, in law as a vehicle to achieve equality, recognition, and redress for harm has often been misplaced. For sexual subalterns in particular, liberal legal institutions and laws are part of and promulgate a heterosexist normative order that constantly refashions these precarious desires and their justice claims into conformity with that order. Kapur suggests that instead of investing our energies as activists in law, we should rethink our notions of justice by moving away from the constraints of liberal legalism to more affective and postcolonial registers.
There are three points that make this article particularly important and a welcome addition to the critical literature on international human rights. First, it asks us to question whether human rights activism and the law are the best, let alone only, mode of engagement for subordinated populations. Second, it directs our attention to that which is often lacking in law in general and international law in particular: the affective, lived experiences of the subject of rights. In particular, for LGBT people, the article makes visible the uncomfortable and cruel optimism of human rights in an already dominant heteronormative order. And it reminds of the postcolonial critique of liberalism and liberal rationality.
Kapur’s intervention is a welcome addition to a growing body of work that articulates a deep dissatisfaction with the law as emancipation and specifically with an increasingly coopted body of human rights practices, institutions, and vernaculars. But given both that justice has been so bound up with law, and that the human rights lexicon has been the primary means of demanding justice in the international sphere, few legal theorists have sought to offer alternatives. Critiques of human rights abound, but are there other paths of activism than this powerful yet often ambivalent discourse and practice? Kapur’s innovative appropriation of affect theory combined with a postcolonial critique of liberal epistemology suggests that for a richer, truly transformative, and more satisfying lived experience of justice, sexual subalterns cannot rely on such a deeply heteronormative framework of legality.
Kapur first lays out the deficiencies in human rights by using Judith Butler to demonstrate how human rights fails to recognize certain sexual minorities and gendered subjects and the harms that these subjects may experience. As Butler theorizes, human rights has not solved the problem of hierarchies of grievability in which some lives are simply not grievable to those at the top of the hierarchy. Regardless of international human rights’ theoretical assertion of equality and universality, the political reality has demonstrated that subjects can and do lose the rhetorical and legal protection of “humanity.” As Kapur aptly points out, “Those who are considered inhuman or whose subjectivity is effaced in the sense that there was either no human there in the first place or no life, cannot experience injury, or harm or erasure” (P. 269.) The “human” does not exist outside of its political construction as an a priori legal artefact. It is created through social relations and politics and, thus, becomes recognizable by law. Kapur argues that this undermines any notion of a universal human rights subject. There are people who are left out of protections of legal justice that haunt it, reminding us that they exist: the sex worker and the transgendered, among others.
If justice is conceived of as freedom, Kapur questions whether this can ever be fully realized within liberalism. Tracing the advocacy for LGBT rights and women’s rights, Kapur articulates the limits of these interventions in fully achieving “justice”. She notes:
To be recognised as a victim of sexual violence in human rights law is important. But such recognition is a part of an already existing process that only recognises certain gender arrangements and performances as legitimate and addresses complaints that emanate from a subject who complies with such arrangements. Justice requires compliance and failure to comply renders an individual a deconstituted subject in law. (P. 271.)
It is not that decriminalization of homosexuality or the passage of stricter rape laws do not matter. Rather that legal moves cannot hope to encompass justice as freedom. The ease with which human rights and legal justice can be coopted into missions of homonationalism or feminist imperialism and the cultural imperialism that often accompanies such projects, she suggests should give us pause. Yet, the difficulty is that justice and human rights is a thing that sexual subalterns and the abject cannot not want. One of the reasons this may be the case is that human rights has become the lingua franca of articulating injury in the international. And as Kapur recognizes, we must sometimes necessarily settle for what human rights offers us—at a minimum, a language (no matter how impoverished) to express our abjection and to demand legibility as humans whose rights should not be contingent on total conformity.
Nevertheless, there are those who cannot conform to the requirements of the law without radical change (sex workers and transgendered people whose sexuality is determined by the state are examples). For those ungrievable lives with their precarious desires, there are few alternatives. For those whose conceptions of justice include such lives, Kapur suggests alternative registers that can be used to make such precarious desires at least socially legible.
Having laid out the critique of the liberal legality of human rights, Kapur very aptly points out “The critiques do not in and of themselves give rise to a strategy, but they prompt an exploration into whether it is possible to turn away from legal justice as a freedom project, and for justice to thrive in an environment outside a liberal imaginary” (P. 282.) She suggests two moves that are required to reorient justice away from its constraints. First, Kapur asks us to interrogate the ways that progressive politics pursued through human rights might actually make some groups even more precarious. Jasbir Puar’s work on homonationalism whereby LGBT groups demanding recognition do so at the expense of stereotyping and marginalizing Muslims who are already subject to discrimination in the War on Terror is a well-known example. The second move and perhaps more important move is to turn away from the law, delinking it from justice. She offers two alternative registers that can be the bases for liberation and justice: feminist affect theory and non-liberal, postcolonial epistemologies.
Kapur uses Lauren Berlant’s work on affect and her concept of cruel optimism to raise questions about the ways in which justice projects both miss the quotidian oppression of marginalized lives yet hold out hope that the oppression will be redressed.
Engagement with the possibilities of affect foreground how the marginalised or excluded subject continues to live and survive in the face of evidence that life is precarious. Coping takes place through a continued belief in the fantasy and creation of attachments and desires for objects that may in the end serve as obstacles to a subject’s flourishing (P. 285.)
By focusing on the present, the daily affective lives of these subjects affords us the opportunity to understand the interplay between justice and injustice that is obscured by the “pursuit of legal justice through human rights” which “may be missing the point altogether” (P. 286.)
As for the turn to non-liberal epistemologies, Kapur turns our attention to postcolonialism as a way to escape the liberal legal order. Postcolonial thought, like that of Gandhi and Tutu with their engagements with forgiveness and truth could offer us a productive non-legal way to think about justice. Kapur ends with an exploration of Western thinkers who take this approach towards the end of their lives: Eve Sedgwick’s turn to Buddhism and Michel Foucault to to the political spirituality underlying the Iranian Revolution. This is not to suggest that a turn to religion as an alternative to liberal secularism is the answer but to point to the different epistemic communities that are often neglected by international law and human rights theorists . Reclaiming these epistemologies is particularly important for those in the Global South who have been underserved by liberal legalism and the justice claims that rely upon it. Kapur’s article offers us new ways of thinking about liberation and our affective attachments to the law as the principle mode of securing it.
Rosalind Dixon and David Landau’s Transnational Constitutionalism and a Limited Doctrine of Unconstitutional Constitutional Amendment contributes significantly to at least two fields of legal scholarship: the writing on unconstitutional amendments and the literature on comparative constitutional law. In what follows, I will highlight how this most impressive text contributes to each of these fields.
Consider first the article’s contribution to the writing on the doctrine of unconstitutional amendments. As the authors’ exhaustive citations reveal, scholars have long examined how courts should determine whether “some constitutional amendments are substantively unconstitutional because they undermine core principles in the existing constitutional order.” (P. 608.) Dixon and Landau state with striking clarity the stakes that underlie this debate. They note that the doctrine creates a slippery slope problem: judicial oversight can create a brake on attempts to enshrine in a constitution measures that unambiguously undermine its democratic legitimacy, yet there is a risk that courts will extend the doctrine to cases in which there is only reasonable disagreement about a particular interpretation of the constitution and therefore no serious threat to the polity’s democratic order. When a court overreaches in this way, the authors note, it frustrates the political branches’ ability to pursue a constitutionally recognized avenue for resolving a reasonable disagreement with the judiciary. Dixon and Landau describe the consequences of such judicial overreaching: “Giving courts unfettered power to invalidate amendments for incompatibility with their own prior preferred reading of the constitution will create a clear democratic danger or cost.” (Id.)
An academic article can add much to a debate by clearly framing a problem in the way that Dixon and Landau have done, but they go further than this. They prescribe a novel and compelling solution that should influence how academics and courts view the problem of unconstitutional amendments. And in the course of developing this solution, they advance an ongoing discussion about how courts should engage in comparative constitutional law. Consider first their proposal.
After illustrating the slippery slope problem with close analyses of case studies drawn from the Indian and Columbian experiences, the authors survey judicial attempts to address it. One set of solutions seeks to narrow the doctrine by applying it to a limited set of institutional provisions or a closed set of fundamental principles. (P. 624.) This solution is flawed, Dixon and Landau note, because it does not respond to situations in which a government can make changes that, considered individually, would not significantly affect a polity’s fundamental democratic character, but in the aggregate likely would. (P. 625.) A second set of solutions supplements the narrowness approach with “a potential adverse impact standard.” (P. 626.) According to this standard, any amendment that threatened a constitutional order’s democratic foundations would be invalidated. Yet this solution fails because of its evident problems of overbreadth. (P. 627.) Instead of resolving the slippery slope problem, this proposal reproduces it.
Dixon and Landau’s doctrinal prescription is ingenious and avoids the shortcomings of the alternatives. They argue for a “broad but weak standard.” (P. 627.) The standard is broad, in that it is not limited ex ante and therefore would enable a court to identify the diverse ways in which a constitutional amendment can threaten core democratic values. The standard is weak, in that it would apply only when a constitutional amendment would threaten to have a “substantial adverse impact” on such values. A court seeking to apply such a standard faces difficulties at two stages: “(1) the identification of which principles and values must be protected against substantial adverse impact and (2) the determination of whether a given constitutional amendment actually has such a substantial impact.” (P. 629.) Dixon and Landau recommend that courts consider the practices and case law of other jurisdictions when they embark on these stages of analysis. The authors survey an impressive array of examples in order to illustrate how such analyses could be undertaken.
The ingenuity and novelty of Dixon and Landau’s proposal advances significantly the literature on unconstitutional amendments, while the methodology underlying the proposal represents an important contribution to the broader field of comparative constitutional law. In their examination of the different forms that the doctrine of unconstitutional amendment can take, the authors adopt what I would characterize as a decision-rules approach to comparative constitutional law, which focuses on the kinds of rules that courts use when interpreting and applying a constitution, and examines the considerations that go into selecting a specific rule. Constitutional scholars who have applied this approach in the domestic context include Kermit Roosevelt III (The Myth of Judicial Activism (2006)) and Richard H. Fallon Jr. (Implementing the Constitution (2001)). Echoes of this approach can be heard in Dixon and Landau’s discussion of standards and rules (P. 623), and in the assessments of the costs and benefits of the different constitutional standards that we surveyed above.
In adopting a decision-rules approach, the authors respond to one version of the problem of incommensurability in comparative constitutional law. The problem can be stated in practical terms: because of social, economic, political, and historical differences among constitutional orders, it is folly to compare them and reckless to prescribe solutions that would purport to apply across orders. A decision-rules approach to comparative constitutional law addresses this problem directly. It examines the costs and benefits of courts’ adopting a particular form of constitutional rule and then tests the analysis against specific contexts. Dixon and Landau offer a particularly rigorous demonstration of how this can be achieved. Moreover, they pose an implicit challenge to those who are generally skeptical of prescriptions that are offered across constitutional jurisdictions. The authors challenge those who would disagree with their proposal to demonstrate, with specific examples, why a broad but weak standard does not adequately respond to the risks they identify with the doctrine of unconstitutional amendments. Such a challenge concretizes the debate about the desirability of comparative constitutional prescriptions and removes it from the realm of abstract concerns about incommensurability.
I close this review with Dixon and Landau’s second major contribution to comparative constitutional law, which responds to a second version of the problem of incommensurability. Critics of constitutional borrowing sometimes argue that it is democratically illegitimate. According to this criticism (which was enunciated perhaps most forcefully by Justice Scalia), when a court incorporates into its decisions the constitutional norms of foreign jurisdictions, it undermines the sovereignty of its constitutional polity. This is so, the critics claim, because constitutional norms are indissociably tied to the beliefs and values of a given polity and courts therefore usurp the will of the political community when they engage in constitutional borrowing.
Dixon and Landau’s approach to applying their broad but weak standard responds to this criticism. Recall that they propose that courts look to comparative constitutional sources and experiences in order to reflect upon the values and institutions of their own polity. In this approach, the utility of the foreign materials must therefore be assessed by appeal to reasons that are convincing within a court’s own constitutional order. In other words, the materials would aid a court’s reflections only if they could explicitly be engaged on terms that are considered to be legitimate within the court’s polity. As a consequence, a court applying Dixon and Landau’s approach would seem to affirm its polity’s constitutional values and contribute to an ongoing discussion about them.
The approach’s promise is revealed when the authors examine a hypothetical assessment of some of Germany’s “institutions of militant democracy” (P. 634), including political party-banning. Dixon and Landau argue that although a German judge may find no consensus among constitutional democracies about the significance of such an institution, she may find it to be of fundamental importance to the German constitutional order. The authors note: “Transnational engagement will nonetheless act as a second look, forcing constitutional judges to articulate compelling reasons why a value or institution is fundamental, despite not being seen as essential elsewhere.” (Id.) It is difficult to see how this kind of recourse to comparative constitutional materials would amount to an act of judicial usurpation.
As we have seen, Dixon and Landau’s article clarifies debates around, and offers a novel proposal in respect of, the doctrine of unconstitutional amendments. It also tackles long-standing concerns about incommensurability in the comparative constitutional law literature. An article that did any one of these things would be an important contribution. The fact that Dixon and Landau do all of them marks their text as most worthy of sustained and careful attention.
Constitutional drafters, advisors, and commentators alike should read Kristen Stilt’s excellent article, Contextualizing Constitutional Islam: The Malayan Experience. It provides an engrossing history of a constitutional creation story—the 1957 Constitution of the Federation of Malaya (now Malaysia)—and sheds important light on the development of what Stilt terms “constitutional Islam,” or the incorporation of references to Islam and Islamic law in modern constitutions. These accomplishments alone would be enough for an enthusiastic jot. But the article does much more, raising fascinating questions about the nature of constitutional compromise and the role of religion in societal conflict, as well as pragmatic concerns about the effectiveness of international constitutional advisors.
Stilt’s article succeeds in its main goal: developing (and complicating) our understanding of constitutional Islam by showing how various types of constitutional clauses referring to Islam are enmeshed in larger legal, political, economic, social, and cultural debates. And she argues persuasively that future work must engage with both the international and domestic dimensions of the debates over constitutional Islam. Without this duality in nuance, at least two problems could arise: the influence of international models and international affairs might improperly be discounted, or a clause that appears to be cut and pasted from one constitution to the next could incorrectly be assumed to have a uniform meaning when internal justifications for its inclusion vary dramatically.
Through a detailed and contextualized assessment of the constitutional drafting process, Stilt demonstrates that the ultimate decision to include an establishment clause in the Malayan Constitution had both international and domestic dimensions, many having little to do with religion itself. As an international matter, secular India and Islamic Pakistan were critical reference points that took on political weight beyond their constitutional models. And with the decolonizing British focused on communist containment, geopolitical issues influenced political alliances and recalibrated British interests, thus affecting the final constitutional package. Internally, domestic pressures—including federalism and safeguarding the rights of the ethnic Malay minority against growing Indian and Chinese populations—served to define the terms of constitutional debate over religion. Stilt’s rich history shows the contingent nature of constitutional compromise in light of the fluidity of retail (rather than “high-principle”) politics and the driving desire for power. In addition, her description of the political movement to protect the ethnic Malays by connecting religion to ethnicity gives support to those who suggest that the American penchant to focus on religion obscures the myriad other inputs into societal conflict.
Contextualizing Constitutional Islam also serves as a welcome reminder of how other disciplines can enrich comparative constitutional law. We are well aware of the benefits given to the field by the quantitative political scientists, and Robert Leckey has made a compelling case for the role of the traditional lawyer and the legal method in his excellent new book, Bills of Rights in the Common Law. Stilt’s article reminds us that we cannot forget the historians! The archival research underpinning Stilt’s contribution provides intriguing historical data that could be useful for better evaluating our own modern constitutional projects. For example, she highlights the role of the independent Constitutional Drafting Committee—nonresident drafters from Britain, India, Pakistan, and Australia who, after gathering evidence in Malaya, wrote the draft constitution in Rome. The Mayalan committee and others like it are the precursors to today’s international attempts to advise national constitutional drafters. The committee’s deliberations and its members’ machinations provide concrete examples of how such experts have succeeded (or failed!) in influencing or contributing to stable constitutional regimes.
As the United Kingdom threatens to split apart in the aftermath of Brexit, take a moment to return to the beginning of the end of the British Empire by reading Stilt’s article. I had the opportunity to read this project in draft form, have enjoyed seeing its evolution, and think the final product is great. But in the words of LeVar Burton on Reading Rainbow, you don’t have to take my word for it: It was recently awarded the Best Paper Prize at the International Society of Public Law (I•CON-S) Conference in Berlin.
Cite as: Erin F. Delaney, Context Clues
(July 15, 2016) (reviewing Kristen Stilt, Contextualizing Constitutional Islam: The Malayan Experience
, 13 Int’l J. Const. L.
407 (2015)), https://intl.jotwell.com/context-clues/
Daniel Gervais’s recent article in the Houston Law Review examines the revision of the 1958 Lisbon Agreement for the Protection of Appellations of Origin and their International Registration (Lisbon Agreement) that took place at a Diplomatic Conference held in Geneva under the auspices of the World Intellectual Property Organization (WIPO) in May 2015. The Geneva Act of the Lisbon Agreement on Appellation of Origin and Geographical Indications (Geneva Act) was finalized and opened for signatures in May 2015. As it is reflected in its title, the adoption of the Geneva Act of the Lisbon Agreement had extended the scope of protection—previously limited to appellations of origin (AO) in the Lisbon Agreement—to include also geographical indications (GIs), which are defined along the lines of the definition of GIs in the 1994 Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS).
I enjoyed reading this article, which certainly represents one of the most comprehensive reviews of the May 2015 Diplomatic Conference and the language of the Geneva Act of the Lisbon Agreement written to date by one of the most distinguished experts in the field. Most significantly for scholars and those interested in the topic, Professor Gervais offers a candid review of the background leading to and the meetings that took place at the Diplomatic Conference in Geneva. In this respect, the core message of the article is that WIPO Member States—in particular common law countries on one side and civil law countries on the other side—may have missed an important opportunity to find a much needed compromise on the issue, and finally reconcile the differences on the normative basis for the protection of GIs, including the protection of AOs for the countries members of the 1958 Lisbon Agreement, that have historically characterized the debate in this area.
The finalization of the Geneva Act of the Lisbon Agreement follows decades of international controversy on this topic. The process leading to the adoption of the Geneva Act further ignited this controversy—especially due to the fact that only countries who were members of the Lisbon Agreement were allowed to vote (and this excluded all common law countries, including the U.S.). Still, the controversy on GIs was not a global affair until the negotiations of TRIPS. Prior to TRIPS, the most relevant sources for international GI protection were fund in the 1883 Paris Convention for the Protection of Industrial Property (Paris Convention), which refers to indications of source, the 1891 Madrid Agreement for the Repression of False or Deceptive Indications of Source on Goods (Madrid Agreement), also referring to indications of source, and the Lisbon Agreement, which specifically protects appellations of origin (a term derived from the French “appellations d’origin”). But the Paris Convention did not specifically address the protection of indications of geographical origin. And both the Madrid Agreement and the Lisbon Agreement had few signatories, and their impact internationally was limited.
Instead, TRIPS had a large membership base. Accordingly, following the adoption of TRIPS, all countries members of the World Trade Organization (WTO) had to implement a minimum standard of GI protection in their national systems. Notably, all WTO Member States are obliged to provide a floor of protection against the misleading uses of all GIs, and enhanced protection for GIs for wines and spirits. TRIPS additionally introduced a built-in agenda for Members to negotiate additional GI protection, namely an extension of enhanced GI protection beyond wines and spirits (an extension strongly favoured by developing countries) and the creation of an international registry for GIs. However, two decades after the adoption of TRIPS and despite repeated attempts, WTO Member States have not succeeded in finding an agreement on any of these issues. More explicitly, multilateral negotiations on GI protection have collapsed and no hope of agreement or reconciliation seems possible, at this time, within the framework of TRIPS.
Because of this impasse at the multilateral level, countries with GI-intensive industries, primarily the European Union (EU), have turned to international free trade agreements (FTAs) to promote the protection of their GIs in other countries. In this context, the EU has obtained important concessions, including “clawing back” several terms that are protected as GIs in the EU. The U.S. and other countries from the “GI skeptics camp” have tried to oppose the EU’s strategy in parallel trade negotiations. For example, several provisions address the relationship between trademarks and GIs in the Trans-Pacific Partnership (TPP). However, it still remains unclear how countries that have negotiated separate FTAs with the EU and the U.S. (for example South Korea), or that have concluded a FTA with the EU while also being members to the TPP, will reconcile, in practice, the commitments to which they have agreed to in these FTAs. Today, the EU and the U.S. are also negotiating the Transatlantic Trade and Investment Partnership (TTIP). So far, GI protection is proving one of the most difficult topics in the TTIP.
Again, as Professor Gervais points out, the Diplomatic Conference held in Geneva to revise the Lisbon Agreement could have become that much needed forum to restart multilateral negotiations on GIs. Instead, the final text of the Geneva Act missed the opportunity to bridge the existing gaps between the Lisbon system and the common law. As Professor Gervais recounts, there are several historical differences between civil law and common law countries’ approach to GI protection. Notably, many common law jurisdictions use trademarks, collective marks, and certification marks, to protect geographic symbols and names, whereas civil law countries tend to use sui generis rights, following the system established first in France, and then in the European Union (EU). This trademark system for GI protection has a number of normative and administrative implications, including with respect to the requirement of use of a GI, the loss or diminution of right due to acquiescence and abandonment of a GI, and the possibility that the GI becomes generic. Another important difference is related to the renewal of registration and the payment of maintenance fees. Hence, nothing in the Geneva Act of the Lisbon Agreements addresses these issues.
Still, Professor Gervais concludes by stating that, despite the many difference between the common law and civil law on the topic, the United States (U.S.) and other common law countries may ultimately capitulate and join the Lisbon system as revised in Geneva, primarily because of international trade pressures. This was the case, for example, with the Berne Convention for the Protection of Literary and Artistic Works (Berne Convention). After a century of opposition, the U.S. and other common law countries joined the Berne Convention. Perhaps, the same may happen with the Lisbon Agreement (in less than a century). Notably, the U.S. and the rest of the common law may join the Geneva Act because of additional concessions from the EU with respect to relevant national trade interests for the US.
Certainly, I agree that civil law and common law countries could have worked harder at finding a compromise, especially with respect to the administrative procedures, the requirement of use, and the issue of genericness. Still, in my opinion, it should not be forgotten that the U.S. also provide a sui generis-like type of protection to U. S. appellations for wine. This protection is remarkably similar to a civil law country, and is granted at the federal level by the Treasury Department’s Alcohol and Tobacco Tax and Trade Bureau (TTB). To date, the TTB has approved over 130 viticultural areas in thirty-two states. A similar protection is administered at the state level and several states have adopted ad hoc regulations on the use of geographic names for wines state-wide. Besides the U.S., other common law countries, like Australia for example, protect as appellations for wine with sui generis protection. Accordingly, I would support that civil law and common law countries do seem to be able to reconcile their views on the topic when their respective national interests on the protection of GIs align, as in the case of GIs (including appellations) for wine. In contrast, common law and civil law countries’ views on the topic seem to sharply diverge when their respective national interests do not align—like currently it is the case with respect to names for cheese or cured meat products in the TTIP negotiations and other FTA negotiations.
Finally, perhaps the result of people travelling more, cooking and travel shows, and better access to information, I would like to note that a more “GI-friendly” mentalite is also gaining ground across the U.S. and other common law countries “from within.” The rise of “heathier food” chains such as Whole Food and Trader Joe’s, the growing prominence of “fair trade” and “slow food” movements, and even the renewed attention to buy and consume local products, including visiting and shopping at local farmers’ markets and selecting restaurants guaranteeing that their products are local “from the farm to the table,” are just some examples of this trend. In todays’ globalized economy, consumers are rediscovering the importance of “locality” and “local products.” Consumers also expect more accurate information about the quality and origin, including geographical origin, of the products that they purchase. Recent scandals—for example with respect to “parmesan”-based products produced in the U.S., which had almost no trace of parmesan cheese at all—have highlighted the increasing need for producers’ accountability and the ability of consumers to avoid contaminated, unsafe, or simply below standard products. As a result, GIs have become a more relevant tool also in the U.S. and other common law countries to indicate and guarantee “locality,” that is, local origin to local consumers.
In conclusion, Professor Gervais’s article tackles a crucial topic at a central time and represents an important contribution for future research in this growing field. Scholars from both common law and civil law countries should continue to weigh into this discussion, and they will certainly refer to Professor Gervais’s article as a foundational reading for further research.
In her splendid article, The Gentle Cannibal: The Rise and Fall of Lawful Milk, SOAS, University of London Lecturer in Law Yoriko Otomo tackles the fascinating subject of state control over milk production in three jurisdictions—France, England, and India—which all embraced milk at some point in their history as an essential food to support their nation, both nutritionally and economically. She shows that in these countries, law shaped and promoted the commercialization of cow’s milk, shifting the locus of milk production from the domestic sphere to the industrial and negatively impacting rates of breastfeeding.
Why analyze a substance as seemingly local as milk from a comparative legal perspective? Otomo argues that “milk feeding — through the control of both the ‘flow’ of breastmilk and of cow’s milk — undertakes the juridical work of drawing consumers into a regulatory and ideological system, making them lawful subjects.” In other words, milk production and regulation have historically been intertwined with the development of the law and political economy of the modern nation state. Otomo’s three cases in point are: the nineteenth century French regulation of the wet nursing profession, which brought the state into the domestic sphere; the rise and fall of the English Milk Marketing Boards in the twentieth century, which ensured standardized milk prices and increased dairy consumption across the United Kingdom; and postcolonial India’s “White Revolution” in the 1970-90s, which transformed India into the world’s largest milk producer.
Otomo’s article offers at least two significant insights to legal scholarship. First, it helps to break the scholarly and legal divide between human breast milk and cow’s milk. The literature too often treats the two liquids—and their female producers—“as having nothing to do with one another.” This separation is reflected in the law, with regulations of animal milk typically divorced from regulations of human milk. In the United States, for example, cow’s milk is one of the most regulated food products, yet there are no laws on the books governing human milk. Despite the growing American practice of donating or selling breast milk online or of making it available through milk banks or milk depots, neither the American Association of Tissue Banks nor the Food and Drug Administration classify breast milk as a tissue or a food. In fact, they do not classify it as anything.
Second, by integrating comparative legal studies into broader understandings of the law from feminist and critical animal studies’ perspectives, Otomo’s article is tangible evidence of the strength of comparative and international scholarship, which is invigorated by cross-fertilization with new theoretical frameworks and methodologies. In the 1970s, microhistory revolutionized the study and writing of history by focusing on the lives and activities of specific persons or groups. By concentrating on a particular object of lawmaking, milk, Otomo forces us to re-think comparative law beyond the conventional tropes of similarities-differences, convergence, transplantation, and functionalism. Reliance on feminist scholarship and critical animal studies allows her to challenge the social and legal constructions of sameness and difference—of human versus animal milk in one legal system and another, of regulation of a discrete area of the law (such as child rearing or food) versus a state’s more general nation building project, of domesticity versus industrialization and colonization, and of the “West” versus the “Rest.”
Otomo concludes that milk is a “deeply political” issue, characterizing her project as describing how “the production and consumption of our most valuable liquid commodity has been shaped to serve the state.” More broadly, thinking about dairy legislation should be of particular interest to lawyers and legal scholars considering milk’s role in shaping the law in multiple areas, including constitutional law, contracts, family law, taxation, equality law, and international law. To give just a few examples, in the United States, some of the most famous cases and legal controversies of the last century originated in disputes concerning milk regulation—for instance the iconic constitutional cases, Carolene Products and Nebbia, which were instrumental in defining the respective powers of the federal and the state governments. Similarly, European Union law was durably influenced by the so-called 1964 “Dairy Products” case, Commission v. Luxembourg and Belgium, which reinforced the foundational doctrines of direct effect and supremacy of European law.
In sum, milk is everywhere, especially in the law, and The Gentle Cannibal: The Rise and Fall of Lawful Milk helps us see it, encouraging us to question its ubiquity. As a result of reading Otomo’s article and getting to know her through it, she and I will pursue milk studies together in a co-edited volume tentatively titled Making Milk: The Past, Present and Future of Our Primary Food.
Cite as: Mathilde Cohen, Comparing Milks
(April 13, 2016) (reviewing Yoriko Otomo, The Gentle Cannibal: The Rise and Fall of Lawful Milk
, 40 Austl. Fem. L. J.
215 (2014)), https://intl.jotwell.com/comparing-milks/
One strategy for increasing overseas investment, especially in developing economies, is to assure investors that they will have recourse if something goes wrong. With this in mind, bilateral investment treaties often allow investors to bypass suspect local courts, going instead to international arbitration. The article Predictability Versus Flexibility: Secrecy in International Investment Arbitration, written by political scientists Emilie M. Hafner-Burton, Zachary C. Steinert-Threlkeld and David G. Victor, identifies the following tension: The willingness of host governments to agree to arbitration in their investment contracts was designed to signal their friendliness to investors. But these arbitrations often happen behind closed doors. And, in fact, this secrecy is part of the institutional design. How does the secrecy interact with the signal? When is the result of arbitration most likely to be concealed? Have efforts to increase transparency worked?
To answer these questions, the authors study records of investor-state arbitration by the World Bank’s Centre for Settlement of Investment Disputes (ICSID). It is not easy to study something secret. But the authors fruitfully exploit two features of ICSID arbitrations to test their educated guesses about what goes on behind closed doors. First, either party in ICSID arbitration can unilaterally request secrecy. The authors report that they do so in about 40% of arbitrations, which allows comparison between confidential outcomes and those that are disclosed. Second, only the outcome is secret. The fact of arbitration and the identity of parties is not. Using this information, the article ultimately provides an account of the functional benefits of confidential arbitration, especially for the state. It portrays arbitration’s confidentiality as built into the initial treaty structure, giving flexibility that preserves the viability of long-term projects.
When do parties elect secrecy? The authors find that arbitration about “long-lived” investments, such as those in infrastructure, is more likely to remain secret than is arbitration about short-term projects. The option of secret outcomes, the authors conclude, gives governments flexibility in “precisely those situations where diluting the public signal would be most beneficial: in disputes over investments where costly compromises are essential to keeping a project viable over a long time horizon.” The authors also test what I’ll call the “once-burned, twice-shy” rationale for choosing secrecy. They find that governments with prior public losses (once-burned) are more likely to elect secrecy (twice-shy). Finally, the authors test whether efforts to increase transparency have worked. They haven’t. Or at least efforts to increase transparency have not been followed by a growing trend of disclosure.
It is in the nature of the project that big questions remain unanswered. The account cannot identify, for instance, the optimal balance between secrecy and transparency (or between the “predictability and flexibility” of the article’s title). It tells us how confidential arbitration functions for the state and sometimes for the investor, but cannot tell us anything about whose view we should care about more. The state?The investor? The broader public?
But the work adds heft to the debates about the balance between transparency and secrecy. And these debates have a broad reach. Balancing these interests is a concern not only in the context of international institutions, but also in any discussion of modern dispute resolution. When can disputes be resolved in a private, confidential domain? When do we value “public” resolution, including that given by access to a public court? The article provides a rich case study of international investment arbitration that helps us think concretely about these fundamental and difficult questions.
Comparative constitutional law is a field crowded with rich and complex ideas about the role of courts and judicial review in a democracy. Yet into this field has now come an important new argument, which is bound to make a distinctive impression on how constitutional scholars and political scientists around the world understand the positive origins, and normative functions, of judicial review in democratic settings: Samuel Issacharoff’s argument that constitutional courts around the world can and do play a valuable role in “democratic hedging.”
The idea of hedging of this kind arises in response to two basic threats: first, that within many democratic systems there are a range of anti–democratic actors who attempt to use the freedoms enshrined by constitutional democracy to launch an attack on its most basic institutions and stability, from within; and second, that in many new democracies in particular, there are often political elites that are so dominant that they effectively stifle the degree of political competition needed for true democracy, even in the most minimal sense.
Issacharoff argues, however, that we live in “the age of constitutional courts”—that is, an era in which many democracies now have specialized constitutional courts with explicit power to review the constitutionality of legislative and executive action. In many cases, these courts also have the authority to rule on the outcome of elections, and to invalidate formal constitutional amendments, or even the replacement of constitutions. This means that there is a natural third party that can act as supervisor of both the electoral process and ordinary politics: constitutional courts are in a position to enforce, and regulate, limits on anti-democratic speech and participation in elections by antidemocratic parties. In some cases, they may also be placed to restrict attempts by dominant political actors to use law as a means of entrenching their hold on power.
This argument builds on important work by Issacharoff, Richard Pildes and Pamela Karlan about the potential role of the US Supreme Court in policing the boundaries of political competition within the US—the so-called “politics as markets” idea for which they are jointly famous. And it has some resonance with work by David Landau on the dangers of “abusive constitutionalism,” and my own work with Landau on the ways in which courts may be able to limit anti-democratic forms of constitutional change. But it also quite clearly a major leap in our thinking about the relationship between constitutional courts and democracy: it takes the idea of “politics as markets” and for the first time gives it a truly global focus and inflection.
Scholars for years to come may be expected to debate and analyze the degree to which this kind of role for courts is likely to succeed in different institutional contexts. One obvious question raised by Fragile Democracies is whether the idea of democratic hedging is in fact restricted to specialized constitutional courts, or could just as easily be performed by ordinary courts with general appellate jurisdiction. Often these courts will have just as broad a range of legal tools at their disposal to engage in democratic hedging as more specialized courts. But it may also be more dangerous for generalist courts to play a role of this: if their role in the “political thicket” leads them to be attacked by the political branches, judicial independence as a whole may suffer in a country, whereas if the court performing this role is more specialized, the damage may be more contained.
Another set of questions raised by the book relates to when and under what conditions courts are likely to have the power effectively to check dominant political elites. In some cases, dominant political actors may control so many of the levers of political power that there is in fact no meaningful prospect of court-imposed limits being enforced, rather than disregarded or circumvented. Even the strongest courts, in these circumstances, may simply be too weak to effectively to protect democracy.
Conversely, in other countries civilian control of the military may be so weak that judicial intervention in the name of democratic competition almost always proves too strong a form of democratic medicine: it may simply create a form of legal or political vacuum that leads directly to an increase in military involvement in politics, or even a full-scale military coup, in ways that ultimately destroy rather than protect democracy in the short- to medium-term.
Understanding these dynamics, and when they apply, is a crucial part of understanding the full implications of Issacharoff’s argument. For my own part, I am probably more skeptical than Issacharoff that democratic hedging can succeed in a large number of cases: as Landau and I have suggested elsewhere, successful judicial intervention of this kind seems to depend on a quite specific confluence of political circumstances, which are more the exception than the rule in global politics. And it also likely depends on how courts calibrate their attempt at hedging, or how sensitive they are to considerations of time, context and institutional strength in intervening in democratic politics. (A disclosure here: Issacharoff and I are currently working on a joint paper on judicial review exploring some of these latter themes.)
Saying this, however, is not to diminish the importance of democratic hedging by courts, where the supporting political conditions exist. It simply suggests we should be cautious in concluding that hedging it is a universal role courts can play, regardless of the background political circumstances, or way in which they approach such a role.
In (re)framing the relevant questions in these terms, what is clear is that Issacharoff has created a major shift in the existing terms of debate over democratic constitutionalism: instead of the debate being largely about “consociational” versus federal forms of power-sharing in divided societies or new democracies, it is now also about the way in which courts, and various rights-based and structural constitutional principles, may play a role in facilitating, and stabilizing, majority-based rule in these circumstances.
Issacharoff claims at the outset of the book that he speaks largely as a lawyer, rather than a political scientist, but his engagement with these long-standing debates in political science belies the modesty of this claim. His book is of central interest and importance to both lawyers and political scientists. It also contains a masterly treatment of political science, and economics-based accounts of why political actors might be willing to authorize this kind of judicial role in the first place. Chapter 10 of the book, on the “constitutional bargain,” draws on the insights of the incomplete contracts literature and game theory to show why empowering a constitutional court to play this role may actually increase the efficiency of the constitutional bargain between political elites, ex ante.
People may disagree with some of the details of particular case studies in the book, based on their greater local knowledge of particular cases analyzed by Issacharoff. This, however, is both inevitable and important: Issacharoff analyses literally dozens of case studies and countries, and there are bound to be others in the field who know more about particular cases than he does. There is also independent value to re-analysis of particular case-studies by different scholars: one of the ways in which the field of comparative constitutional law can improve, I have argued elsewhere, is by embracing this kind of overlap, and eschewing an exclusive focus on original theorization or case-description.
But having said that, few people may be persuaded by my argument when they have finished reading Fragile Democracies: this is a major new work in comparative constitutional theory, which achieves that rare blend of novelty and insight that define all great works in the field. It reminds us of why we attempt to do constitutional theory in the first place.
In this article Professor Rochelle Cooper Dreyfuss of NYU Law School and Professor Susy Frankel of Victoria University of New Zealand tackle how international dynamics have shaped domestic intellectual property law and make an authorial appeal for policy reform through domestic and international institutions. In so doing, Professors Dreyfuss and Frankel exemplify the strong engagement with cutting edge conceptual and theoretical issues which Professor Erin Delaney and I hope will be the hallmark of our new Jotwell section.
Their article presents an elegant argument about current intellectual property debates. In the nineteenth century, intellectual property law was exclusively about incentives promulgated by national governments for domestic innovation and creation. International intellectual property treaties from the nineteenth century supplemented these national incentives through harmonization of legal rules to staunch leakage of works across borders through piracy. In contrast, the 1994 TRIPS Agreement, as part of the regime of free trade under the WTO, transformed intellectual property into a commodity. While trade traditionally has entailed the movement of goods, the WTO envisions a world in which patents, copyrights, and trademarks are themselves the object of cross border exchange. And more recently, with the negotiations over ACTA and TPP, intellectual property has transformed from a commodity to be traded to an asset in which companies invest to realize a return. Each shift has made intellectual property rights more privatized with little scope for consideration of the public interest and for the exercise of national sovereignty.
In support of their argument, Professors Dreyfuss and Frankel point to two examples: the shifting role of the working requirement for patents and the investment disputes over plain packaging regulation for tobacco products in Australia.
The working requirement is a legal doctrine that invalidates a patent if the owner does not practice the patented invention within the granting country. This requirement, dating back to nineteenth century patent treaties, made possible domestic employment and the creation of national industry from the patent grant. During the twentieth century, most countries repealed their statutory working requirements under the rationale that the requirements interfered with investment decisions of the patent owner and served protectionist ends. This shift in attitude reflects the metamorphosis of patent law from a tool for national regulation to a species of private property useful as a tool for private investment.
Australia’s battle with tobacco companies challenging national rules for plain packaging of tobacco products also illustrates the changing role of intellectual property. Tobacco companies have challenged the rules as interfering with their investment in trademarks and brands. In arbitration, the companies have alleged the violation of bilateral investment treaties between the sovereign and the corporations. Although these claims have not been successful, the assertions show that trademarks, in particular, have taken on an unexpected role. Originally touted as a means to protect consumers in their buying decisions, trademarks are now seen as investment assets from which companies can recoup profits through commercial sales.
Professors Dreyfuss and Frankel persuasively identify the trajectory of intellectual property from seeds of national innovation to fruit of private bounty. They also identify possible solutions for adjudicators, legislators, and trade negotiators as they advocate for the treatment of intellectual property in various international fora. Specifically, advocates need to realize that the countries and domestic interests they represent may be on different sides of the owner-user antagonisms as technologies change and economies develop. The historical account that Professors Dreyfuss and Frankel give provides important context for ongoing legal and policy debates.
Two examples from the Dreyfuss and Frankel paper offer hope for a deviation from the pessimistic path traced by the authors. In the United States, the Supreme Court’s 2006 decision in eBay v Mercexchange revisited the standard for injunctive relief in patent cases, holding that injunctions are not obligatory and subject to judicial discretion. Although the precise manner of exercising that discretion is still controversial, the limitation on injunctive relief makes it more difficult for patent owners to use patent infringement as a cudgel to protect their private investments. Furthermore, in 2011, the United States introduced the defense of prior user rights into patent law through the America Invents Act. Prior user rights allow companies that have practiced a patented invention prior to the patent grant a defense from infringement. Since the defense favors those who actually commercialize an invention, the defense is a form of working requirement, creating incentives for the use of an invention.
This article invites scholars and those directly engaged in formulating domestic and international intellectual property law to reconceptualize IP rights. This argument for reconceptualization comprises two parts: the rethinking of traditional narratives, and the rethinking of theories of international trade. On the first point, it may be that we can still learn from traditional narratives. In my 2014 book chapter “The Idea of International Intellectual Property,” I look more closely at the ideas of Locke, Hegel, and Rawls, three scholars often discussed in support of intellectual property rights. While these thinkers have helped to shape debates about intellectual property rights within the US and other countries, my book chapter addressed the implications of their ideas of rights for international regimes. In fact, traditional arguments about domestic IP rights, when framed in a global context, do map onto many of the points Professors Dreyfuss and Frankel identify in the transformation of intellectual property into a commodified asset. These authors, especially Rawls, may also offer some guidance on how to redirect this momentum.
On the second – the workings of international trade – Professors Dreyfuss and Frankel emphasize the theory of comparative advantage to explain why innovative countries should specialize in exporting innovation intensive products to less innovative countries (a conclusion that forms the foundation for the TRIPS Agreement). But the theory of comparative advantage is a complex one. At its heart is the notion that some countries can produce certain products more efficiently than other countries. Because of these efficiency advantages, countries should specialize according to their relative advantage and trade among themselves.
The theory is compelling if not intuitively obvious. And identifying the sources of comparative advantage is the key to understanding the theory’s application. Classical economists saw the advantage as arising from technological differences. But these technological differences remained unexplained. Furthermore, to talk about innovative countries is not helpful in explaining comparative advantage since innovation is a dynamic concept while comparative advantage is a static one. Even if a country could invest, perhaps through IP policy, perhaps through subsidies, in improving its comparative advantage, the question remains how a country would select its targets for improvement.
Empirical studies of trade suggest specific theories of comparative advantage (such as the Heckscher-Ohlin theory based on factors of production and natural resources) fail to acount fully for trade patterns. And the one theory that seems to be empirically robust, the theory of intra-industry trade, does not rely on comparative advantage at all. Instead, it explains patterns of trade between countries by the logic of variety. National consumers like goods from other countries because of the variety they provide. Trade between countries entails movements of goods with different characteristics moving across borders. American car manufactures export trucks and utility vehicles overseas and import luxury cars and fuel efficient vehicles, to take one example. Among available economic theories of international trade, the intra-industry trade theory seems to best fit the data, but it leaves unexplained basic questions like where consumer demand for variety originates. Nevertheless, the theory of intra-industry trade might provide a compelling explanation for the importance of intellectual property in international trade, especially as a source of product variety through innovation, design, creativity, and branding.
Professors Dreyfuss and Frankel have provided scholars with a provocative article for future research and discussion. One nagging question is whether the shifts they describe are reversible. I suspect that entropy wreaks havoc for intellectual property policymakers. But I hesitate also to be completely pessimistic. Although one cannot turn back the clock, we as thinkers must confront the challenge to design how the next phase of intellectual property law better incorporates policy issues beyond private ownership and investment. How the conversation continues is up to us and is part of the purpose for identifying and talking thoughtfully about things we like (lots), such as this important article by Professors Dreyfuss and Frankel.