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Abstract:
The orthodox justification for intellectual property is utilitarian. Advocates for strong IP rights argue that absent such rights copyists will free-ride on the efforts of creators and stifle innovation. This orthodox justification is logically straightforward and well reflected in the law. Yet a significant empirical anomaly exists: the global fashion industry, which produces a huge variety of creative goods without strong IP protection. Copying is rampant as the orthodox account would predict. Yet innovation and investment remain vibrant. Few commentators have considered the status of fashion design in IP law. Those who have almost uniformly criticize the current legal regime for failing to protect apparel designs. But the fashion industry itself is surprisingly quiescent about copying. Firms take steps to protect the value of trademarks, but appear to accept appropriation of designs as a fact of life. This diffidence about copying stands in striking contrast to the heated condemnation of piracy and associated legislative and litigation campaigns in other creative industries.

Why, when other major content industries have obtained increasingly powerful IP protections for their products, does fashion design remain mostly unprotected - and economically successful? The fashion industry is a puzzle for the orthodox justification for IP rights. This paper explores this puzzle. We argue that the fashion industry counter-intuitively operates within a low-IP equilibrium in which copying does not deter innovation and may actually promote it. We call this the piracy paradox. This paper offers a model explaining how the fashion industry's piracy paradox works, and how copying functions as an important element of and perhaps even a necessary predicate to the industry's swift cycle of innovation. In so doing, we aim to shed light on the creative dynamics of the apparel industry. But we also hope to spark further exploration of a fundamental question of IP policy: to what degree are IP rights necessary to induce innovation? Are stable low-IP equilibria imaginable in other industries as well? Part I describes the fashion industry and its dynamics and illustrates the prevalence of copying in the industry. Part II advances an explanation for the piracy paradox that rests on two features: induced obsolescence and anchoring. Both phenomena reflect the status-conferring power of fashion, and both suggest that copying, rather than impeding innovation and investment, promotes them. Part II also considers, and rejects, alternative explanations of the endurance of the low-IP status quo. Part III considers extensions of our arguments to other fields. By examining copyright's negative space - those creative endeavors that copyright does not address - we argue can we can better understand the relationship between copyright and innovation.

Intellectual property law, fashion design, fashion industry

Abstract:
The prevailing form of international cooperation in the 20th century, known as liberal internationalism, is increasingly under attack. Based on multilateral treaties, often coupled to formal organizations, liberal internationalism has drawn fire from many quarters. Some critics argue that international organizations threaten national sovereignty and ought to be curtailed. Others claim that globalization and the rise of NGOs are eclipsing state power. In response, transgovernmentalists argue that while that liberal internationalism is dying, the state is here to stay. Much contemporary international cooperation is not international at all: rather, it is occurring among discrete, specialized domestic agencies. These "transgovernmental networks" are expanding rapidly, particularly in regulation. Proponents believe that networks are "the blueprint for the international architecture of the 21st century". This article assesses the future of international cooperation by examining transgovernmental networks and evaluating their relationship to liberal internationalism. My central claim is that networks are a significant development in international law, but one likely to supplement and strengthen, rather than supplant, liberal internationalism.

I make four subsidiary claims. First, an empirical examination of three networks - in securities, competition, and environmental regulation - demonstrates that networks are active and growing. Second, I argue three factors are driving the evolution of networks: the expansion of domestic regulation, increased economic interdependence, and technological innovation. Third, while regulatory enforcement has been a key driver of networks, networks also promote the export of regulatory rules and practices from major powers to weaker states, which in turn promotes policy convergence. I offer a theory of this process which builds upon the insights of network economics. Fourth, and most importantly, the cooperation that networks foster and the convergence that they facilitate have important implications for liberal internationalism. Networks smooth the negotiation of new treaties. They act as gap-fillers where treaties are politically precluded. And by building bureaucratic capacity, networks can improve domestic regulation and thereby enhance treaty compliance and effectiveness. Put differently, there are good reasons to believe networks will make treaties more effective by making governments more effective.

Abstract:
Commitments are a persistent feature of international affairs. Disagreement over the effect of international commitments and the causes of compliance with them is equally persistent. Yet in the last decades the long-standing divide between those who believed that international rules per se shaped state behavior and those who saw such rules as epiphenomenal or insignificant has given way to a more nuanced and complex debate. The proliferation and evolution of international legal agreements, organizations, and judicial bodies in the wake of the Cold War has provided the empirical predicate and a policy imperative for heightened attention to the role of international law. Across many issue-areas, the use of law to structure world politics seems to be increasing. This phenomenon of legalization raises several questions. What factors explain the choice to create and use international law? If law is a tool or method to organize interaction, how does it work? Does the use of international law make a difference for how states or domestic actors behave? These questions are increasingly of interest to theorists and policymakers alike.

This chapter surveys recent developments in the study of compliance in both the international relations (IR) and international law (IL) literature. Part one defines the concept of compliance, distinguishing it from the related but distinct concepts of implementation and effectiveness. We also focus primarily on compliance with treaties, rather than with the broader categories of rules that international lawyers term 'customary international law.' Part two reviews the major theories advanced by IR and IL scholars through the 1990s, setting forth a chronological account. Part three situates these theories in the context of a typology of six different variables that scholars from both disciplines have identified as influencing the existence and degree of compliance. Part four reviews a range of more recent empirical studies of compliance, as well as the results of cognate analyses of regime design, legalization, and the choice of hard law versus soft law. Part five concludes by identifying a number of open questions.

Abstract:
Jack Goldsmith and Eric Posner's "The Limits of International Law" is not an uplifting read for most international lawyers, who are trained to think international law makes an important difference and generally believe more international law is better. The authors' overarching message is that international law is an endogenous outgrowth of individual state interests, and almost never a constraint on those interests. International law can, under special conditions, promote limited cooperation. But its ability to do so is very restricted. Goldsmith and Posner come to these conclusions via an analysis grounded in rational choice theory. In international relations this approach is mainstream. Despite their greater emphasis on the limitations of international institutions, Goldsmith and Posner's analysis is largely consistent with a very large body of existing work in international relations, and is even more derivative of it than they, or their readers, may realize. Limits nonetheless advances some important and trenchant criticisms of prevailing scholarship. And its positive analytic approach to state behavior reflects the burgeoning attention to theories and approaches drawn from political science and economics. Despite these virtues the book is unjustifiably skeptical about international law. Focusing particularly on its chapters on the dynamics of international cooperation, I argue in this review that Limits' relentless rationalism, while clarifying, fails to explain much of the texture of international cooperation - in large part because it fails to take proper account of the last twenty years of research in international relations, much of which highlights complex but important feedbacks between international institutions and domestic politics, preferences, and institutions.

Part I contextualizes the book's arguments within political science scholarship. Part II then shows that even within the rationalist tradition in political science that the authors draw on there is far less skepticism about the stability of cooperation than we see in Limits. That relative enthusiasm, moreover, is not at all grounded in flights of normative fancy or shoddy analysis, but rather in advances in the literature on institutional design in political science. Part III argues more generally that our understanding of the role of law in world politics can be enriched by accounting for a major strand of theory that they largely ignore: liberal international relations theory. Domestic politics seeps into Goldsmith and Posner's analysis here and there, but a more systematic incorporation would improve their arguments substantially. I illustrate the value of such an approach with a brief discussion of a vexing topic examined in Limits: the choice between binding and non-binding international agreements.

international law, international cooperation, limitations on international institutions

Abstract:
Territoriality is decreasingly important as a jurisdictional principle. Since the 1940s, federal statutes in a wide range of areas - antitrust, securities, criminal law, intellectual property, to name just some - have been frequently understood to have extraterritorial effect. Similarly, the protections of the Bill of Rights, once believed to apply only within US territory, now extend across the globe with regard to US citizens. In short, territoriality has been slowly unbundled from sovereignty.

What explains the evolution of what I call here "rules legal spatiality?" The second-image reversed tradition in political science argues that international relations play an important causal role in domestic change. While doctrinal evolutions in discrete areas of the law are undoubtedly an important factor in this shift, I argue that legal rules, like other domestic policies, are influenced by the constraints and opportunities presented by the international system. My primary claim is that the existing pattern of legal spatiality reflects the contingencies of history, but it chiefly reflects power and interest. Over the last century US courts, litigants, Congress, and the Executive have all engaged in instrumental assessments of the benefits and detriments of a reliance on territorial location as a legal principle in particular instances. As world politics has changed, these benefits and detriments have also changed. For example, while globalization is often said to reduce the centrality of territory to states, globalization vel non cannot adequately explain the decline of territorial doctrines of jurisdiction because globalization was highly significant during the 19th century - the height of jurisdictional congruence. Rather, it is the particular nature of postwar globalization, coupled to the rise of the modern regulatory state, that has increased the incentives for states - in particular the US - to assert domestic law beyond their sovereign borders.

territorial boundaries, globalization, territorial sovereignty

Abstract:
This article examines the implications of rising density on the evolution of international institutions. Despite the increase in international institutions scholarship on regimes has continued to embrace the assumption that individual regimes are decomposable from others. We contend that an increasingly common phenomenon is the "regime complex": a collective of partially-overlapping and non-hierarchical regimes. Regime complexes develop in special, often path-dependent ways. They are laden with legal inconsistencies because the rules in one regime are rarely negotiated in the same institution or at the same time as rules in related regimes. The architects of these regimes attempt to avoid the most serious inconsistencies by adopting broad rules that allow for multiple interpretations; in turn, solutions refined through efforts at implementing these rules focus later rounds of negotiation and legalization. We illustrate the concept and the evolution of a regime complex using the rarely-studied issue of plant genetic resources (PGR). Over the last century governments have created property rights in these resources in a Demsetzian process: as new technologies and ideas have made PGR far more valuable, firms and governments have mobilized and clashed over the creation of property rights that allow the appropriation of that value.

international regimes, property rights, environment, intellectual property

Abstract:
This article presents a conceptual framework for analyzing the design of international agreements. This inquiry is guided by a simple fact: international agreements are rarely crafted to maximize cooperation. They frequently lack provisions, such as monitoring systems, that even the most rudimentary analysis suggests are necessary if agreements are to meet their goals. Using the concepts of form and substance I examine three features of international agreements, two related to form and one to substance. Legality refers to the choice between legally-binding and non-legally binding rules; structure to an agreement's provisions for monitoring and sanctioning non-compliance; and substance to the degree of deviation from the status quo ante that an agreement generally demands. Each of these terms represents a distinct design element, yet there are systematic tradeoffs among these elements. Only by understanding these tradeoffs - and the domestic political factors that often determine them - can we understand why agreements are constructed in the manner that they are. I make four core claims. First, the dichotomy of "hard" and "soft" law is not coherent and obscures more than illuminates. I reject the notion that soft law is an analytically useful category. Legality, I argue, is a binary variable. Second, I provide an account of the choice of legal form. I argue that states choose between legal and nonlegal agreements - what I term contracts and pledges - based on a combination of functional concerns, such as uncertainty and credibility; the configuration of power in a given issue-area; and, most significantly, the demands of domestic interest groups and the implications of domestic institutions. These factors roughly correspond to the three prevailing traditions in IR theory: institutionalism; realism; and liberalism. Third, I analyze the relationships between the legality, structure and substance of international agreements. I argue that the differing domestic politics of different issues - such as trade liberalization or environmental protection - help explain when contracts are substantively deep and demanding and when they are shallow and weak. I also examine how the structure of compliance review influences the substance of agreements. Fourth, I conclude with some normative claims about the design of agreements. The systematic preference for contracts in international cooperation often weakens the substance and structure of agreements when states are uncertain about their ability to comply. Consequently, although pledges are often viewed as second-best alternatives, they can, under some circumstances, be first-best.

International law, compliance, cooperation

Abstract:
This paper, written for a forthcoming volume on climate change, provides a positive analysis of the roles and impact of non-state actors (NGOs) in the global climate change regime. It first identifies some of the major actors and distinguishes between two main types of nonstate actors: NGOs and epistemic or expert/scientific communities. Special attention is given to a uniquely important scientific, though not purely nongovernmental, body: the Intergovernmental Panel on Climate Change (IPCC). We then describe and analyze the activities of nonstate actors, examine their influence on current international responses to global climate change, and assess the significance of their current prominence for theories of international cooperation.

global climate change, Intergovernmental Panel on Climate Change (IPCC), international law, international cooperation, government agencies, non-government agencies

Abstract:
Any international regime aimed at the mitigation of global climate change must solve three problems: 1) secure sufficient participation; 2) achieve agreement on meaningful rules; and 3) ensure compliance with those rules. That is, it must solve problems of participation, effectiveness, and compliance. In this paper, prepared for the Harvard Project on International Climate Agreements, we focus on the compliance problem, but with careful consideration of the first two issues. We propose a post-Kyoto Protocol compliance system that is based upon emissions trading coupled to buyer liability. Section I addresses the trade-off between participation and strictness of rules by proposing what we call an 'economy of esteem for climate change.' Section II discusses participation. We suggest that only a cap-and-trade architecture is likely to make it politically possible to secure sufficient participation to get a climate change mitigation regime up and running. Section III analyzes the problem of compliance and argues that, contrary to the current provisions in the Kyoto Protocol, a system of buyer liability is essential. Section IV considers how institutions to assess compliance with emissions reductions could be constructed. Finally, Section V addresses potential weaknesses of our buyer liability system and provides responses to these criticisms. Throughout, we write from the standpoint of the politics of international cooperation; our policy recommendations take into account the more technocratic literatures on compliance, liability, and so forth but flow directly and primarily from our political analysis.

Global climate change, Harvard Project on International Climate Agreements, Kyoto Protocol, emissions reductions, international cooperation

Abstract:
Recent litigation over Guantanamo has turned on whether the detainees there have any constitutional rights cognizable by American courts. Why is geographic location thought to be determinative of the rights of aliens abroad? The supposition that law and legal remedies are connected to, or limited by, territorial location - a concept I term legal spatiality - is commonplace and intuitive. The concept is suffused throughout the law. Yet, perhaps precisely because it so commonplace, the assumptions embedded in legal spatiality are rarely examined and surprisingly ill-defended. This article explores legal spatiality and its contemporary implications. As I will show, there are persuasive reasons to take spatial location into account when interpreting legal rules. Current doctrine, however, does a poor job of accounting for these reasons and provides no coherent and consistent theory of the role of spatiality within our legal order. The last century has witnessed a progressive relaxing of legal spatiality. Yet with regard to noncitizens, the federal courts continue to cling to the notion that American law is tethered to territory - that simply by moving an individual around in space, the rights that individual enjoys wax and wane. This article argues that this strictly territorial approach ought to be rejected. Instead, the spatial reach of legal rules ought to be evaluated functionally and flexibly, with a rebuttable presumption that when legal power is brought to bear, so too are legal protections. This is not to suggest that territorial borders do not matter: they clearly do. Rather, my claim is that a narrow fixation on sovereignty and territoriality is at odds with contemporary concepts of jurisdiction, with the intensifying trend of globalization, and with our most cherished principles of constitutionalism.

The article proceeds as follows. After briefly describing the roots of legal spatiality in the deep structure of the international legal system, I analyze the evolution of legal spatiality across a number of doctrinal areas. These areas are rarely considered together, but all implicate legal spatiality in one way or another. They also demonstrate that legal spatiality has been substantially transformed in the last century. I then look at the particularities of the connection between Guantanamo and the United States and critique the position that conceptions of territoriality and sovereignty or the Guantanamo lease agreement, somehow bar the application of those legal rights noncitizens possess when held within the fifty states. Finally, I consider some alternative conceptualizations of legal spatiality, and argue that spatial location ought not woodenly foreclose the existence of constitutional rights for noncitizens subject to American power outside the boundaries of the United States.

Guantanamo, extraterritoriality, constitution

Abstract:
The orthodox argument for IP proceeds in three steps. First, creative works are often difficult and expensive to create - think of the poet in pursuit of the right verse, or pizza-fueled late nights spent programming a new video game. Second, once the author or inventor produces the first version of a work, others will find it quick and cheap to copy the work. Third, unless the law equips the creator with enforceable exclusive rights, the copyist, having invested nothing in the creation of the work, will outcompete the originator and deny her a return on her investment. The practices of the fashion industry are hard to square with the traditional justification. The global fashion industry produces a huge variety of creative goods without strong IP protection in one of its biggest markets (the United States), and without apparent utilization of nominally strong IP rights in another large market (the countries of the European Union). Copying and derivative re-working of fashion designs are rampant in both the U.S. and E.U., as the traditional account would predict. Yet innovation and investment remain vibrant.

Why, when other major content industries have obtained increasingly powerful IP protections for their products, does fashion design remain mostly unprotected - and economically successful? We argue that the fashion industry counter-intuitively operates within a low-IP equilibrium in which copying does not deter innovation and may actually promote it. We call this the piracy paradox. Our article offers a model explaining how the fashion industry's piracy paradox works, and how copying functions as an important element of, and perhaps even a necessary predicate to, the industry's swift cycle of innovation. In so doing, we aim to shed light on the creative dynamics of the apparel industry. But we also hope to spark further exploration of a fundamental question of IP policy: to what degree are IP rights necessary to induce innovation in particular industries? Are stable low-IP equilibria imaginable outside of the fashion industry?

global fashion industry, intellectual property protection, copyright on creative goods

Abstract:
One of the signal features of contemporary world politics is that intellectual property rights are increasingly an arena for global cooperation and conflict. The proper role, scope, and stringency of international intellectual property (IP) rules are highly contested questions, questions that more and more arouse both passions and interests. Once limited to a set of relatively anemic treaties that lacked an effective means of international enforcement, international IP law has, in the last decade, been transformed by the arrival of a dense array of new institutions and agreements. This dense array of institutions has in turn transformed both the substance and the process of international IP lawmaking. This paper comments on Laurence Helfer's contribution to the 2006 UC Davis Law Review symposium, entitled 'Toward a Human Rights Framework for Intellectual Property'. Helfer's specific focus is the intersection of human rights and IP law. His core claim is that human rights agreements and human rights treaty bodies increasingly engage with questions of IP, and IP institutions and agreements increasingly use human rights language and rhetoric. There is no question that the underlying phenomena Helfer identifies - an increasingly dense system of international institutions, and rising competition and conflict among differing rules and institutions - exist and are growing in importance. In this regard 'Toward a Human Rights Framework' raises important positive and normative points, which I will take up in turn in this short paper. Part I considers the positive claim that the processes by which IP law is made are shifting. I concur with this assessment, and indeed expand upon it by situating the claim within broader trends in international law and politics. Using the concept of a regime complex I argue that international IP law exhibits particular features, features which are explicable only once the impact of institutional density is recognized. Part II then turns to normative questions, and briefly queries whether the marriage of human rights and IP is bound to be a happy one. In particular, I question whether the infusion of human rights concepts and rhetoric will serve, on balance, to make international IP rights more socially just, or just more powerful. I look to recent examples of propertization in traditional knowledge and geographic indications and argue that these cases illustrate some benefits, but also some pitfalls, from the intersection of human rights and IP law.

Intellectual Property (IP), international IP rules, human rights

Abstract:
Geographic indications (GIs) stand at the intersection of three hotly debated issues in international law: international trade, intellectual property and agricultural policy. Akin to a trademark, a GI identifies a good as originating in a particular region, where a given quality of the good is attributable to its place of origin. Well-known GIs include champagne and prosciutto di Parma. Although GIs have a long history, in recent years they have become central to the debate over the expansion of intellectual property rights in the World Trade Organization. We argue that GIs have gained greater political salience and economic value due to major changes in the global economy. Proponents of GIs also raise more diffuse concerns about authenticity, heritage and locality in a rapidly globalizing world. After explaining the origins of the effort to protect GIs in international law, we assess the normative justification for these unusual intellectual property rights. Some GI protection in international law is justifiable. But the existing level of protection afforded by the World Trade Organization - as well as current demands of the European Union for even greater protection - is unjustified. We defend this position through careful consideration of the major theoretical bases for property rights.

Abstract:
The WTO TRIPs Agreement heralded a landmark and controversial change in international law. It significantly increased the power of international intellectual property law and simultaneously engendered debate over the status and scope of intellectual property rights. Perhaps the most theoretically-contested such right relates to 'geographic indications' (GIs). Akin to a trademark, a GI identifies a good as originating in a particular region, where a given quality of the good is attributable to its place of origin. Because the place is said to be essential to the product, proponents argue that those outside a specified region cannot be permitted to use its place-name on product labels. The question of GI protection is linked to politically sensitive debates over agricultural protection, as well as the degree to which international law ought to trench upon questions of culture and tradition.

This paper examines and critiques the rise of GIs in international law. Although GIs have a long history, we argue they gained markedly greater salience in the postwar period due to major changes in the global economy. Increasing consolidation of formerly discrete markets in turn meant increased competition - and opportunities - for many traditional producers. This enhanced global competition has raised the value of putative GI rights. While economic concerns loom large, the effort to entrench GI protection also draws strength from more diffuse concerns about authenticity, culture, and locality in a rapidly integrating world.

After explaining the origins of the effort to protect GIs we assess the justification for these new rights. We argue that GI protection is justifiable for many of the reasons that trademark rights are justifiable: primarily, to protect consumers against confusion and to lower their search costs. We contend, however, that the current level of protection afforded by TRIPs for wine and spirits - which disallows any mention of a protected GI by a producer outside the region, even if the production locale is clearly indicated - is unwarranted in that it goes well beyond what trademark theory supports. A fortiori, further expansion of the wines and spirits standard to new products, as currently sought by European and other states in the Doha Round, is unjustified as well. We defend this position through careful consideration of the major theoretical bases for property rights.

international law, international intellectual property, geographic indications

Abstract:
Should traditional knowledge - the understanding or skill possessed by indigenous peoples pertaining to their culture and folklore and their use of native plants for medicinal purposes - receive protection as intellectual property? This Article examines nine major arguments from the moral, political and legal philosophy of property for intellectual property rights and contends that, as applied to traditional knowledge (TK), they justify at most a modest package of rights under domestic and international law. The arguments involve desert based on labor; firstness; stewardship; stability; moral right of the community; incentives to innovate; incentives to commercialize; unjust enrichment, misappropriation and restitution; and infringement and dilution. These arguments do, however, support “defensive” protection for TK: that is, halting the use of TK by nonindigenous actors in obtaining patents and copyrights. These arguments also support the dissemination of TK on the internet and via other digital media and the selective use of trademarks. The force of these conclusions resides in the importance of a vibrant public domain, and the absence of any plausible limiting principle that would allow more robust rights in TK for indigenous groups without permitting equally robust rights for nonindigenous groups.

copyright, digital, indigenous peoples, intellectual property, international law, legal philosophy, patent, property, public domain, restitution, trademark, trade secret, traditional knowledge

Abstract:
This is the preface and opening chapter of a forthcoming book on Oxford University Press about the way that geography shapes legal rules and understandings - and how fundamental changes in American power and in world politics have challenged and sometimes altered the traditionally territorial system of legal jurisdiction. Do the laws of the United States stop at the water's edge? If not, do they operate differently beyond American territory? These questions often arise today with regard to hot-button issues such as the future of Guantanamo. But they have a long and fascinating history, dating back to the American Revolution and encompassing episodes as varied as the military occupation of parts of Mexico, the U.S. District Court for China, American empire after the Spanish-American War, extraterritorial regulation, and postwar Status of Forces Agreements. This book explores changes in territoriality and extraterritoriality through these episodes, covering questions of both constitutional and statutory law, world and domestic politics, and internal and external borders. Two main arguments are advanced. First, instances of extraterritoriality, while varied, share a common ground in their focus on managing and minimizing legal difference, differences that are a direct result of the territorial basis of sovereign rule, which has been the organizing principle of the international system for centuries. Second, American law has long employed what I call intraterritoriality as a way to facilitate the power of the United States. The United States comprises a complicated mix of territory. Within the states constitutional rights apply fully, but throughout much of American history only a limited set of rights have applied in other U.S. territories. Intraterritoriality is in a sense a mirror of extraterritoriality. Extraterritoriality generally serves to mitigate difference, whereas intraterritoriality generally serves to establish difference. Throughout the book I contend that we cannot understand the evolution of extraterritoriality and intraterritoriality in U.S. law without understanding the broader international context. American notions and doctrines of territoriality were themselves drawn from international law. Yet these notions and doctrines evolved over time to reflect American national interests. As the United States grew from a weak state to a global superpower, and as the nature of world politics itself changed, principles of both extraterritoriality and intraterritoriality have been transformed.

U.S. Law, changes in territoriality and extraterritoriality regulations, constitutional and statutory law

Abstract:
The study of globalization is burgeoning across the academy, and is increasingly a topic of legal scholarship. While critiques and defenses of globalization are myriad, the theme most commonly propounded in legal circles is that of a democratic deficit. As decisions previously taken at the national level are constrained by, or undertaken through, the acts of international organizations, policies are increasingly harmonized and, some argue, shifted in a free market direction. Traditional administrative law concepts and solutions appear increasingly feeble; the challenge is to update administrative law for the age of treaties. In this essay, which reviews Alfred Aman's The Democracy Deficit: Taming Globalization Through Law Reform (2004), I situate the book in the broader literatures on globalization and global governance and evaluate the alleged challenges to democracy and due process posed by these twin phenomena.

global governance, administrative law

Abstract:
Fashion design presents a significant challenge to the current enthusiasm for expansive intellectual property rights. Despite an absence of protection under American copyright law, creativity and innovation in fashion design remain vibrant. Nonetheless there is substantial sentiment in favor of some form of copyright for fashion design, and a “Design Piracy Protection Act” was recently re-introduced in Congress. This brief essay, part of a forthcoming colloquy in the Stanford Law Review, analyzes and critiques a defense of limited copyright protection for fashion design advanced by Scott Hemphill and Jeannie Suk. We argue that even limited design protection is unnecessary and unwise, and may well undermine those designers it is intended to help. We nonetheless agree with Hemphill and Suk on many other points of analysis, including the importance of understanding competing impulses - dubbed “differentiation” and “flocking” - that spur apparel purchases, and on the more general point that fashion design cannot easily be subsumed under conventional copyright analysis.

copyright law, fashion design, copyright protection

Abstract:
Offshoring is usually thought of in the context of globalization and economic activity. Yet a signal feature of the Bush Administration's "war on terror" was the offshoring of core security functions. The most famous example is the use of Guantanamo Bay as a detention center, but many other examples of extraterritorial activity exist, such as the practice of "extraordinary rendition." This chapter, drawn from a forthcoming book on Oxford University Press titled Does the Constitution Follow the Flag?, charts and analyzes these developments, and associated judicial decisions such as Boumediene v. Bush, with reference to larger trends in American politics and jurisprudence.

Guantanamo Bay, offshore prisons, extraterritorial jurisdiction

Abstract:
A common critique of international agreements is that they lack enforcement and are weak. A key element of this purported weakness is the lack of effective monitoring of state compliance. This Article explores two modes of treaty monitoring: "police patrols" and "fire alarms." These concepts, drawn from the literature on congressional oversight in political science, are applied to the North American Agreement on Environmental Cooperation, a side agreement to NAFTA. The Agreement is unusual in that it empowers private actors to bring direct complaints about noncompliance to an international organization, i.e., it creates a fire alarm for citizens and NGOs. The implications of this structure of treaty monitoring are analyzed, as are the reasons behind the creation of this treaty feature.

North American Agreement on Environmental Cooperation, environmental law enforcement, treaty monitoring