Student Features

Recent Developments, Student Commentaries, Student Features

The Success of, and Response to, India’s Law against Patent Layering

This note examines India’s unique law against patent layering, and holds it up as a successful model for countries that wish to restrict the practice in a legal environment that makes it increasingly difficult to do so. The note argues that India’s law complies with TRIPS, and, unlike several alternative means of curbing patent layering, also complies with the obligations that most International Investment Agreements impose on states.

This note also takes stock of the global response to India’s law, focusing on the patent laws of other countries, and on several post-TRIPS preferential trade agreements that implicate patent law. The note ends by highlighting two emerging trends: developing countries that wish to curb patent layering are taking note of India’s law, and at least two countries—the Philippines and Argentina—have adopted similar provisions. Meanwhile, the United States and the European Union, which are home to many pharmaceutical innovators, continue to push for greater global patent protection through preferential trade agreements with other countries. A leaked draft of one agreement currently under negotiation—the Trans-Pacific Partnership (TPP) agreement—includes a provision that explicitly requires signatories to allow exactly what the Indian law prohibits, down to the choice of words. This reveals that supporters of patent layering aim to shape the global patent protection landscape in a manner that curbs the spread of India’s anti-patent layering law.

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Article Responses, Student Features

Constitutional Convergence and Customary International Law

In Getting to Rights: Treaty Ratification, Constitutional Convergence, and Human Rights Practice, Zachary Elkins, Tom Ginsburg, and Beth Simmons study the effects of post-World War II human rights texts on domestic constitutions, with a particular focus on the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights (ICCPR). After analyzing 680 constitutional systems compiled by the Comparative Constitutions Project to create a list of seventy-four constitutionally protected rights, the authors evaluate whether countries incorporate internationally codified human rights into their domestic constitutions, whether ratification of international agreements affects the probability of rights incorporation, and whether such incorporation increases the likelihood that countries enforce rights in practice.

After tabulating the data and running random-effects models, the authors find “a significant upward shift in the similarity to the [Universal Declaration] among constitutions written after 1948,” leading them to conclude that the Universal Declaration acted as a “template” from which constitutional drafters could select rights. They also demonstrate—after controlling for the era and a state’s prior constitutional tradition—that post-1966 constitutions from states that ratified the ICCPR are more likely to include its codified rights in subsequent constitutions than non-ratifying states. Finally, relying on Freedom House’s civil liberties index, the authors conclude that human rights agreement ratification and constitutional incorporation is correlated with improved human rights practice on the ground.

This ambitious project and its quantitative and qualitative findings are applicable to a wide range of international law scholarship. Getting to Rights offers new evidence relevant to convergence theory, provides empirical support for speculation on the effects of international agreements on domestic law, and determines that human rights are most effectively enforced when international and domestic law are applied in tandem. It also suggests a methodology for similar future research into the influence of supranational texts—such as the European, Inter-American, or African Conventions on Human Rights—on domestic constitutions.

From this garden of subjects, this response focuses on one offshoot: the consequences of the authors’ data on rights convergence for customary international law theory. After briefly reviewing the definitions of customary international law and jus cogens, I discuss the potential implications of converging constitutionally protected rights. I then examine the authors’ data in light of these hypotheses and conclude that, from this point forward, scholars who argue that certain norms have obtained customary international law or jus cogens status will have to address the Getting to Rights data. Due to the necessary brevity of this response, however, I leave more complete analyses of individual rights to others.

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Recent Developments, Student Commentaries, Student Features

The Enforcement of Foreign Copyright Judgments in U.S. Courts and the First Amendment

“This Note aims to use the Viewfinder decision as a starting point to consider more broadly the enforcement of foreign copyright judgments. It will caution against the temptation to summarily refuse to enforce foreign copyright judgment as inherently incompatible with the First Amendment. This Note will argue that the Second Circuit was correct in evaluating the foreign copyright judgment in conjunction with American copyright law, rather than solely through the lens of the First Amendment. Foreign copyright decisions, governed under their own intellectual property legal frameworks, should not go through the same analysis as libel and hate speech decisions, which fall at the center of First Amendment protections. Domestic copyright laws already include built-in protections, such as the doctrine of fair use, to ensure that First Amendment values are preserved. Courts should thus evaluate foreign copyright judgments by comparing the protections provided by the foreign countries’ intellectual property frameworks to domestic intellectual property laws.

“Current scholarship on the enforcement of foreign copyright decisions, including the Viewfinder decision, is limited. Some scholars have written on the enforcement of foreign judgments, looking more broadly at First Amendment implications, but none have focused on copyright cases in the aftermath of Viewfinder. This lacuna is unfortunate, because it suggests that foreign copyright judgments do not merit their own analysis, but rather fall within the same category as other foreign judgments implicating the First Amendment. Indeed, scholars writing on the subject of foreign judgments have treated the Viewfinder case as just another example of domestic courts addressing the First Amendment’s effect on foreign judgments. As this Note suggests, this analysis is flawed, because several reasons, including the increasing harmonization of intellectual property laws across countries, militate in favor of the enforcement of foreign copyright judgments that do not apply to the other foreign cases implicating the First Amendment which have come before courts. Furthermore, Viewfinder highlights the complexity of applying the First Amendment in the age of the internet, where speech is no longer territorially bound and content emanating from one country often reaches a global audience.”

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Article Responses, Student Features

Reciprocity and the Regulatory Function of International Investment Law

In a timely article, Jason Yackee proposes a pair of important, attractive, and politically plausible reforms to the international investment law (IIL) system. Because his proposals offer real promise as a way to bolster the regime’s credibility and efficacy, this response will engage both the particulars proposed and the theory that informs them. I hope to suggest that, even for those who may not share Yackee’s theoretical framework or his normative reservations about the IIL regime, his proposals offer an attractive response to the slow-burn crisis of legitimacy that has dogged the regime for more than a decade.

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Article Responses, Student Features

Does international investment law need administrative law?

Jason Webb Yackee’s thoughtful article, Controlling the International Investment Law Agency, is an important contribution to a growing literature on the question of the legitimacy of the international investment law (IIL) system, and, in particular, investor-state arbitration, which is largely the focus of his article.  Rather than taking a for-or-against position on the IIL system in its present form, Professor Yackee proposes that we accept the system as it exists and analogize it “to a domestic-law administrative agency in which significant policymaking authority is transferred from political organs to expert decisionmakers who are charged” to effect “the promotion and protection of foreign investment.”  In viewing the IIL system through this lens, Professor Yackee argues that the system’s major weakness—“the lack of sufficient mechanisms of state political control”—is laid bare, and that the state can, in his view, be reinserted to “sit at the top of the decisional hierarchy” through application of administrative-law principles.  The state is “re-stated” (my word, not his) at the center of the IIL system by recognizing that the system is a political one that needs political checks, and those checks are provided by states.  In Professor Yackee’s view, principles of administrative law point the way to a partial solution—“the adaptation of notice-and-comment and legislative veto concepts to the dispute resolution process.”  The idea is that viewing the IIL system through the lens of administrative-law agency provides a potential solution to the question at the heart of the system itself:  what role should the state play in IIL, especially in the investor-state context?

In this response, I do three things.  First, I examine whether there is a problem with the IIL system that needs an administrative-law solution.  Second, I explore whether the analogy to administrative law helps solve the putative problem.  Third, I offer some concluding thoughts to encourage the consideration of more than state interests in evaluating the IIL system.

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