Exploring the Regulatory World, by Jeffrey Pojanowski

by Guest Blogger — Tuesday, Oct. 2, 2018

I am administrative law scholar in the fustiest sense of the term. I write about judicial review of agency action, with a particular focus on questions of law. Yes. I am one of those bores who writes about Chevron. I do this while being well aware that so much (most?) of the important thinking in administrative law touches on questions that mostly don’t touch the courts: how Congress interacts with administrative agencies, how agencies interact and coordinate among themselves and with the White House, and how the internal dynamics of particular agencies operate. If you’re just shining your light on judicial review, you’re missing the dark matter that makes up most of the regulatory cosmos.

Yet there I stand, pointing my pen light on the same sliver of the subject. This makes me, of course, singularly unqualified to review Sam Halabi’s fascinating book, Intellectual Property and the New International Economic Order. The regulatory complexity concerning transnational intellectual property and technology transfer makes study and analysis of, say, the internal workings of the EPA or the dynamics of the OMB look like child’s play. Yet Halabi conveys a concise, readable, and compelling story that the combines history, IP and antitrust law, international law, and policy analysis. This work is clearly the product of years of careful study and thinking, yet it wears its learning lightly and speaks clearly to the interested non-initiate like myself. All of which enables a person like me to comment on this work. Nevertheless, this entry will be more along the lines of “things I learned” and “things I wanted to learn more about,” as opposed to a nuanced engagement with the major claims and arguments.

First, as indicated above, the book underlines how much regulatory action, including by U.S. actors, occurs abroad. Those who, like myself, also teach conflict of laws see the increasing prominence of the canon against extraterritorial application of U.S. law. One who only reads cases in which the Supreme Court declines to apply U.S. securities fraud, antitrust, and tort statutes abroad misses a much larger picture in which multilateral treatymaking and bilateral trade negotiations extend U.S. IP norms to legal regimes more skeptical of such protections. The administrative lawyer who focuses on courts, moreover, will also miss this picture, for such projection of U.S. legal norms usually flows through the executive’s foreign affairs powers or congressionally delegated discretion that is unreviewable.

Second, the web of legal actors and norms operating in international IP is bewildering in its complexity. Shifting alliances of sovereign nations, UN organizations, multinational corporations, and global NGOs advocate for and develop legal norms governing vaccines, medicines, crop seeds, plant genetics, fertilizers, consumer product marks and labels, and educational materials. An administrative lawyer gets the sense of watching the world’s most complicated—and consequential—negotiated rulemaking continually unfold. This comes with elements of high stakes poker as well, such as when Indonesia, frustrated with the high price of Western-manufactured vaccines, holds out on contributing the genetic samples necessary to develop the very flu vaccine they won’t be able to afford. The story is part New Governance-style networked regulation and part international realpolitik, with the same concerns about disparate bargaining power lurking over both.

Third, as a person who also dabbles in private law theory, I am struck by the variety of alternative intellectual property arrangements Halabi presents. Less-protective utility patents, creative compulsory license regimes, prize incentives for orphan drug development, front-end promises by donors to purchase drugs in bulk, and the other “IP shelters” Halabi describes offer different arrangements from the standard suit of U.S.-style patent, copyright, and trademark. Economists can (and do) argue at length over which kind of regime will best incentivize creativity, and it is possible that the invisible hand of the law has touched upon the best balance in giving us the IP we teach in American law schools. It is not obvious that that is the case, and it is obviously an empirical question, though it would seem fortuitous for the uniform extension of U.S.-style IP regimes abroad to be the optimal global arrangement. All of which points to the empirical fragility of a purely instrumental justification for strong intellectual property regimes across the globe. A moral rights-based argument for controlling and enjoying the benefits of one’s own creations would be subject to less empirical contingency. It is also controversial on its own terms and runs headlong into broader questions of global distributive justice. But perhaps that argument is where much of the action is—or should be.

Finally, a question. As a person concerned about global poverty and suspicious of consolidated power in both politics and economics, I am a sympathetic audience for Halabi’s book. Yet even if his picture of the global dynamics is true (again, these contested grounds are not my field), it leaves outside the frame the absolute gains in human wellbeing over the past decades. Hundreds of millions of people have risen out of absolute poverty, at least in part due to the medicines, vaccines, and agricultural advances covered by intellectual property. Global market capitalism is not an unqualified human good, and absolute improvement in basic human well-being do not address broader questions of inequality, but I wonder what role these advances have in Halabi’s broader argument. Did they occur despite or independent of strong global IP protections? Would the developing world be even better off without them? Or is a more complex story? Part of it, I suspect, goes back to empirical arguments about IP incentives, but I am curious about what role some of the good news about human development in the past few decades plays in Halabi’s argument, even if we are not yet where we want to be.

Jeff Pojanowski is a professor of law at Notre Dame Law School and a visiting professor of law at Harvard Law School. His SSRN page is here and he tweets @pojanowski. 

This post is part of a symposium reviewing Intellectual Property and the New International Economic Order: Oligopoly, Regulation, and Wealth Redistribution in the Global Knowledge Economy, a new book by Sam Halabi, Associate Professor at the University of Missouri School of Law and Scholar at the O’Neill Institute for National and Global Health Law at Georgetown University. All of the posts can be read here.

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