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Harmonization of International Legal Structure for Fostering Professional Services: Lessons from Early U.S. Federal-State Relations
Abstract
In the current global marketplace, liberalization of trade in professional services (“services”) presents one of the biggest challenges and profitable opportunities for the international community. Changes in technology and state privatization polices over the past half century have made services the fastest growing sector in international trade. Despite such a transformation, the potential for further innovation and expansion in the services industries is in jeopardy. In response to public policy and regulatory concerns and political pressures to protect domestic jobs and industries, states have adopted a plethora of state-initiated discriminatory and restrictive policies against trade in services. Because existing international legal mechanisms are ill-equipped to resolve these issues, this paper proposes the formation of a unified international legal structure for services as a solution. In advancing this proposal, this paper examines the evolution of United States federalism and its impact on trade liberalization among states and the European Community’s Trademark regime to demonstrate that a harmonized legal system is the optimal framework for responding to changes in the economy and technology - challenges similar to those currently faced by services trade liberalization.
This paper covers four issues essential to understanding the interplay between law, the offshoring of professional services, intellectual property, and international organizations. First, this paper examines the extent to which evolving international conventions restrict the ability of countries, especially developed countries, to inhibit offshoring with the objective of protecting jobs at home. Second, it looks at statistics from independent sources to see if the U.S. ultimately benefits or loses when outsourcing occurs-i.e., whether offshoring exceeds insourcing, or vice versa, in the case of the U.S. Third, it cites specific examples to predict future legal trends in outsourcing. Fourth, it looks at the intellectual property aspects of outsourcing, and suggests equitable protection of intellectual property in an economy with increased offshoring.
The nation's approach to regulating its transportation, telecommunications, and energy industries has undergone a great transformation in the last quarter-century. The original paradigm of regulation, which was established with the Interstate Commerce Act's regulation of railroads beginning in 1887, was characterized by legislative creation of an administrative agency charged with general regulatory oversight of particular industries. This approach did not depend on whether the regulated industry was naturally competitive or was a natural monopoly, and it was designed to advance accepted goals of reliability and, in particular, non-discrimination. By contrast, under the new paradigm, which is manifested most clearly in the Telecommunications Act of 1996, the goals of regulation have become the promotion of competition and maximization of consumer choice. The role of agencies has been reduced to monitoring access and pricing of 'bottleneck' monopolies such as the local telecommunications loop and electricity distribution systems.Having described this transformation in six core common carrier and public utility industries-railroads, airlines, trucks, telecommunications, electricity, and natural gas-the Article sets out on a quest to find its causes. No consistent pattern of institutional leadership can be discerned in any of the three types of government actors with the power to compel change: the regulatory agencies, the courts, and the Congress. This suggests that the causes are rooted in deep-seated economic and social forces, such as technological changes, and chain reactions that have emerged as regulatory reform in one industry segment has spread to another segment. The Article concludes that the two most persuasive explanations are that key interest groups have discovered that regulatory change is in their interests, and that an ideological consensus has emerged among economists and other policy elites that the original paradigm entails risks of regulatory failure that exceed the risks of market failure under the new paradigm.
The old territorial understandings of jurisdiction need to be reconsidered when attempting to arrive at an international standard for trademark protection. Because goods flow in a market, which has become truly international, the laws that protect the indications of source or origin used on or in connection with the sale of these goods and services is also international. Truly, as long as the world community slavishly adheres to territorial justifications for sovereignty and jurisdiction, "harmonization" of trademark laws will be impossible. In fact, the universality of markets for trademark bearing goods was one of the original objectives relied upon in the creation of the Lanham Act soon after World War II. The argument made then was that because goods traveled in one national marketplace, a unified system of trademark laws was necessary to avoid inefficiencies that would be passed on to consumers as manufacturers tried to compete in 50 different jurisdictions under 50 separate trademark laws. Current worldwide initiatives to harmonize trademark laws are perfectly analogous to the arguments made to create one, nation wide system of trademark law in the United States in 1947. Therefore, I offer the following comments not necessarily as a completely contrary point of view, but rather as a friendly Comment that modestly attempts to provide another view on the important issue of trademark law harmonization.
This year marks the 200th anniversary of Marbury v. Madison, the case which is often taught in law schools as establishing judicial review. Despite the absence of any broader political controversy over the role of the Supreme Court, akin to that which existed during the Civil War or the New Deal periods, academics from both ends of the political spectrum have attacked the legitimacy of judicial review. Recent critics have even argued that the Constitution, as originally understood, did not authorize courts to refuse to enforce unconstitutional legislation.In this paper, we discuss the textual, structural, and historical roots of judicial review. First, we show that the constitutional text permits judicial review and we describe the severe difficulties associated with the claim that the Constitution is not law to be applied in the courts. Second, we explain that the constitutional structure requires the judiciary refuse to enforce laws that violate the Constitution due to its status as a coordinate branch of government. Simply put, the text and structure demand that the judiciary interpret and give effect to the Constitution in the course of performing its function of deciding Article III cases or controversies. Third, we refute the notion that the Founders did not understand the Constitution to establish judicial review. We trace how historical developments leading up to the ratification had made judicial review a familiar institution to the Founders, and we demonstrate that all those who discussed judicial review during ratification (there were dozens) agreed that the Constitution authorized judicial review. We conclude that those who argue that the Founders originally understood the Constitution to preclude judicial review have misread the historical record.
- Trade World
- Organization
World Trade Organization, Frequently Asked Questions About TRIPS,
http://www.wto.org/english/tratop_e/trips_e/tripfq_e.htm#IdenticalRules (last visited Apr. 21,
2010).
Creating a Trademark Protection Program in the United States and Abroad 371 Id. 372 Id. at 190. 373 Id. prompt return of children wrongfully removed to or retained in any Contracting State 380 The ongoing custody battle between a
- Jon O Webster
Jon O. Webster, Creating a Trademark Protection Program in the United States and
Abroad, in UNDERSTANDING TRADEMARK LAW 2008 169, 189 (Pract. L. Inst. ed., 2008).
371 Id.
372 Id. at 190.
373 Id.
prompt return of children wrongfully removed to or retained in any
Contracting State. " 380 The ongoing custody battle between a U.S.
citizen father and a U.S.-Japanese dual citizen mother highlights the
necessity of international acceptance and compliance of a uniform set of
laws in such circumstances. 381
See Chemerinsky, supra note 128, at 247. 189 Smith, supra note 140, at 525. 190 Interstate Commerce Act
See Chemerinsky, supra note 128, at 247.
189 Smith, supra note 140, at 525.
190 Interstate Commerce Act, Pub. L. No. 49-41, 24 Stat. 379 (1887).
351 Di Cataldo, supra note 269, at 34. 352 See Luis-Alfonso Duran, The New European Community Trademark
- Id
Id. art. 93.
351 Di Cataldo, supra note 269, at 34.
352 See Luis-Alfonso Duran, The New European Community Trademark, in GLOBAL
TRADEMARK AND COPYRIGHT 1995: MANAGEMENT AND PROTECTION 355, 360 (Pract. L. Inst.
ed., 1995).
From the European Patent to Community Patent, 8 Colum
Vincenzo Di Cataldo, From the European Patent to Community Patent, 8 Colum. J. Eur. L.
19, 21 (2002).
C. legislation 251 Weiler, supra note 249, at 2413-15. 252 See Fischer, supra note 244, at 419. 253 See Weiler, supra note 249, at 2415. 254 Case 26
- I Factortame
- Ecj The
Factortame I, the ECJ expanded this doctrine, allowing E.C. legislation
251 Weiler, supra note 249, at 2413-15.
252 See Fischer, supra note 244, at 419.
253 See Weiler, supra note 249, at 2415.
254 Case 26/62, Van Gend en Loos v. Nederlands Administratie der Belastingen, 1963 E.C.R.
1.
255 Id.
256 Id.
257 Weiler, supra note 244, at 2413.
258 Id. at 2415.
259 Case 6/64, Costa v. ENEL, 1964 E.C.R. 585.
Council Directive 89/104, To Approximate the Laws of Member States Relating to Trade Marks
Council Directive 89/104, To Approximate the Laws of Member States Relating to Trade
Marks, 1988 O.J. (L40) 1 (EC) [hereinafter THD].