An Integrated Model of Legal Transplantation: The Diffusion of Intellectual Property Law in Developing Countries
37 Pages Posted: 6 Oct 2013
Date Written: October 3, 2013
Why do some countries adopt exogenous rules into their domestic law when those laws do not align with the country’s specific interests? This article draws on the policy diffusion literature to identify four causal mechanisms that are hypothesized to give rise to those transplants in the case of asymmetric interests. While the literature presents these mechanisms independently, this article argues that each works in combination with the others to facilitate legal transplantation. The empirical demonstration is based on a quantitative analysis of legal transplants in the field of intellectual property (IP), and incorporates an original index of IP protection in 121 developing countries over 14 years. Our results suggest that, while one mechanism – coercion – is instrumental in initiating the transplantation process, it fades over time and is largely supplanted by three others: contractualization, socialization and regulatory competition acting in a mutually supportive manner. This article concludes with a plea for theoretical eclecticism, acknowledging multi-causality and context-conditionality. Any comprehensive explanation of legal transplantation must include the identification of mutual reinforcement between causal mechanisms, rather than simply ranking their relative contributions.
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