Kal Raustiala Research Articles

Analysis of Knockoff Culture and the need for IP protection in the Fashion Industry in India

The present paper analyzes the role of intellectual property protection vis-a-vis the fashion industry. The Piracy Paradox coined by law professors Kal Raustiala and Christopher Sprigman in the United States has led to imitation becoming an inescapable reality for designers all around the world on the astonishing pretext that is “imitation sparks innovation.” Presenting a critique of the Paradox in the Indian scenario in Part 1 of the paper, the author stresses upon the need for securing proper laws to protect the heart of the fashion industry, that is original artistic expressions. In Part 2 of the paper, whilst examining judicial decisions in India, the author argues that the present laws are riddled with loopholes that have resulted in a proliferation of cheap knock-offs that not only hamper the creative process of a brand, but negatively impact its exclusive reputation as well as its revenue. The infamous idea presented by the Piracy Paradox coupled with a lacunae in the laws have cost not only big fashion brands and designers but also disrupted the emergence of businesses in the nascent stages. To conclude, solutions have been proposed to dismantle the notion propounded by the Piracy Paradox and strengthen the laws in place to ensure fair and just competition in the economy.

The Eras of Extraterritoriality in the United States

This article uses the research from Kal Raustiala’s book, Does the Constitution Follow the Flag? : The Evolution of Territoriality in American Law, and the research from several of my articles on extraterritorial applications to explain how the United States has used the regulatory tool, extraterritoriality, since the time of the American Founding and how such use has differed as the United States gained power. The manner by which the United States has relied on extraterritoriality has differed depending on a particular era of history. For instance, this article articulates five eras that have characterized the U.S. decision-making process for extraterritoriality: cautionary, progressive, indiscriminate, withdrawal, and arbitrary. The United States within each era has embraced certain customary principles more than others such as sovereignty, territorialism, international comity, and global constitutionalism. Its reliance on these principles is volatile and changes in each era. What is remarkable is the extent to which the United States has and has not considered international issues as a part of its practice of utilizing extraterritoriality. As a young nation, the United States greatly clung to notions of sovereignty and territorialism and eschewed extraterritoriality because it was not strong enough to exert such power nor could it handle an invasion from another foreign power. Sovereignty and territorialism gave the United States the peace of mind and security against an uprising. International considerations were prominent and commonplace in the early eras. But as the nation grew in strength throughout each successive era, it no longer needed the bedrock of sovereignty and territorialism to safeguard it from other foreign powers. The United States instead sought to inject its laws extraterritorially and engage in global policing. Its rise in economic and political power gave it the strength to do so. Extraterritorial regulation was on the rise. However, the more its use of extraterritoriality rose, the more domestic struggles the United States encountered, which led to arbitrary judicial decisions and policy-making. Further, during the later eras, the United States relied less and less on international considerations and engaged in withdrawal tactics, causing some to view its behavior as hegemonic. There is a great imperative of examining history with the law. How U.S. history and politics can inform the future of the law is critical. The findings laid out within this article will serve a starting point for future research regarding potential future eras.

Transterritorial Currents and the Imperial Terripelago

Transterritorial Currents and the Imperial Terripelago Craig Santos Perez (bio) Growing up on the Pacific Island of Guåhan (Guam), I learned American history and geography. To memorize the states and capitals, I studied a political map in which the continental United States was represented as a large island against a blue background. On the bottom left corner of the map, Alaska appeared as an island off California, and Hawai‘i appeared as a group of islands off the southern coast of Texas. America was not a continent; America was an “imperial archipelago.”1 In fact, while the United States remains largely thought of as a continental power, it is literally “the largest overseas territorial power in the world,” governing more than four million people outside the continent.2 A more complete political map of the discontiguous American Empire would include Guåhan, American Samoa, the Northern Mariana Islands, the Federated States of Micronesia, the Marshall Islands, Palau, Puerto Rico, and the US Virgin Islands. One might even add the former territories of Cuba and the Philippines. If we map the international network of American military bases and embassies, then the map more truly reflects America’s global archipelago. To navigate the complex coordinates of empire, several scholars have articulated an “Archipelagic American Studies.” For example, Brian Russell Roberts writes: “No epic of continental exceptionalism affords analytical priority to the continental Americas over the archipelagic Americas. The meta-archipelagic frame—as it evokes interconnections among radically distant and disparate islands—encourages the visualization of overlapping, contingent meta-archipelagoes.”3 This archipelagic turn offers a promising analytic to navigate the transnational, transatlantic, transpacific, transindigenous, and transhemispheric turns in the now discontiguous archipelago of American studies. Even though the idea of the archipelago offers a “vision of bridged spaces rather than closed territorial boundaries”4—emphasizing how the continent is produced in relation to islands—it remains essential to foreground the history and processes of territoriality that structure the origins and ongoing formations of American Empire. The word territory derives from the Latin [End Page 619] territorium (from terra, “land,” and -orium, “place”). Territorium may derive from terrere, meaning “to frighten”; thus, another meaning for territorium is “a place from which people are warned off.”5 With this in mind, I propose a new term, terripelago (which combines territorium and pélago, signifying sea), to foreground territoriality as it conjoins land and sea, islands and continents. In Does the Constitution Follow the Flag? The Evolution of Territoriality in American Law, Kal Raustiala describes “territoriality” as the organizing principle and central phenomenon of modern government, international law, and global empire. Territoriality refers to “the organization and exercise of power over defined blocs of space. At the core of contemporary statehood is the idea … that each sovereign state has its own discrete and exclusive territory.” The principles and processes of territoriality, however, are often rearticulated, contested, and in flux. Raustiala points to these variations when prefixing territoriality into “extraterritoriality” (when “domestic law extends beyond sovereign borders”) and “intraterritoriality” (when “different areas within a sovereign state have distinct legal regimes”).6 Indeed, mapping the American imperial terripelago draws our attention to the shifting histories of territorial regimes, including incorporated territories (states), unincorporated territories, trust territories, commonwealth territories, freely associated states, tribal territories, and federal territories. Patrick Wolfe argues in “Settler Colonialism and the Elimination of the Native” that “territoriality is settler colonialism’s specific, irreducible element.”7 However, the analysis should be extended, for even though the logic of elimination is premised on the procurement, occupation, and maintenance of land, territoriality is more than land. Territoriality signifies a behavioral, social, cultural, historical, political, and economic phenomenon. Territoriality demarcates migration and settlement, inclusion and exclusion, power and poverty, access and trespass, incarceration and liberation, memory and forgetting, self and other, mine and yours. Humans, animals, plants, and environments all struggle over territoriality. Today, nearly every country and population in the world is entangled in territorial struggles over lands, waters, resources, representations, and rights.8 Territorialities are shifting currents, not irreducible elements. The structure of marine currents (surface currents, crosscurrents, undercurrents, rip currents, ebb currents, flood currents) has the power to move the ocean and transform global...

The Dynamics of Regime Complexes: Microfoundations and Systemic Effects

This article takes stock of the current debate on regime complexes. The spe cific relevance of such complexes for global governance is best grasped if these complexes are understood as systems that relate and organize their elemental institutions. They emerge from activities of relevant interna tional actors, in particular the member states of their elemental institu tions, as well as from interactions among these institutions. Regime complexes establish interinstitutional competition, which may lead to open conflict and turf battles, but may also produce a well-established division of labor among the elemental institutions. As they provide forum-shopping opportunities for actors, regime complexes put overlapping governance in stitutions under continuing competitive pressure and they do not necessar ily predominantly benefit the most powerful states. In order to increase the coherence and effectiveness of global governance efforts, the manage ment of regime complexes will become an increasingly important task of global governance. KEYWORDS : regime complexes, microfoundations, sys temic effects, institutional interaction, interplay management. THE EMERGING LITERATURE ON REGIME COMPLEXES REFLECTS CONSIDERABLE uncertainty as to how regime complexes matter for global governance. To tackle this question, we need a comparatively clear idea of their nature. Kal Raustiala and David G. Victor’s widely used definition of a regime complex, to which the editors of this issue refer, focuses on three aspects: composition by a number of elemental institutions, horizontal structure among these insti tutions, and a common issue area. 1 However, these indicators do not tell us much about the nature and effects of regime complexes. Accordingly, many contributions to the increasingly intensive debate on regime complexes, as well as the contributors in this issue, use this notion somewhat metaphori cally. It is not clear whether a regime complex reflects merely the sum of its elemental institutions or whether it has an existence of its own. Only in the latter case may it influence global governance as a systemic factor separate from its elemental institutions and relevant actors. Moreover, a loose con ception risks that regime complexes are identified in every issue area of global governance, without gaining much analytical leverage. In this article, we take stock of the current debate. We argue that the specific relevance of regime complexes for global governance is best

Does the Constitution Follow the Flag? The Evolution of Territoriality in American Law. By Kal Raustiala. Oxford and New York: Oxford University Press, 2009. 328 pp. $29.95 cloth.

Does the Constitution Follow the Flag? The Evolution of Territoriality in American Law. By Kal Raustiala. Oxford and New York: Oxford University Press, 2009. 328 pp. $29.95 cloth. In the aftermath of 9/11, the Bush administration opened the nowinfamous detention center at Guantanamo Bay. The detention center's location in an offshore military baseFa territory not formally a part of the United States, yet under U.S. jurisdiction and controlFhas raised an important legal question: Do the detainees have constitutional rights, such as the right to file a habeas petition? Recent Supreme Court decisions notwithstanding (Boumediene v. Bush 2008), as Kal Raustiala writes in Does the Constitution Follow the Flag? The Evolution of Territoriality in American Law, the answer to this question is far from straightforward. Raustiala states in his acknowledgments that the inspiration to write Does the Constitution Follow the Flag? first emerged from a student's question about the constitutional and jurisdictional status of Puerto Rico as an American territory, and then blossomed during the post-9/11 debates over the Guantanamo detainees and the rights of those being held in the United States's ''black site'' prisons scattered across Europe and Asia. In this compelling and well-researched book, Raustiala explores ''whether, and if so how, the law of the United States is [or has been] congruent with its sovereign territory'' (p. 5). Raustiala approaches his subject matter from an analytical, not normative, perspective. He is not arguing whether the Constitution should follow the flag. Rather, he is interested in tracing the evolution of territoriality in American law; in delineating the instances in which the Constitution did, and did not, follow the flag. Specifically, his approach is to historically trace, via contextualization and analysis of relevant court cases, the development of what is commonly called ''extraterritoriality'' and what he calls ''intraterritoriality.'' By ''intraterritoriality,'' Raustiala is referring to cases in which different regions within the sovereign, territorial borders of the United States, or in other instances, regions outside of the United States but under American imperial control, have been held to different (typically lesser) legal standards. He interprets intraterritoriality as a strategy to exploit legal difference for strategic ends and explores the concept in the context of nineteenth-century ''manifest destiny,'' American westward territorial expansion, and American imperial expansion overseas. During these times, it was clear to legal authorities that the Constitution protected those in the States, but did constitutional norms apply to the Western territories? To ''Indian country?'' To Hawaii and the Philippines? To Puerto Rico? It was hard to argue that these territories were not under American power, but did legal rights follow this power? Raustiala's primary source material for this book is prominent legal cases, and in this instance he details the intraterritorial implications of, for example, the infamous Dred Scott case (1857, in which the Supreme Court determined that constitutional rightsFin this case, protection of private propertyFdid extend into Federal territories) and Downes v. Bidwell (1901, one of the ''Insular Cases''), decided some half a century later, which veered away from the logic of Dred Scott and facilitated the expansion of the United States's overseas empire by declaring Puerto Rico as American territory but beyond full constitutional protection (as the Court awkwardly wrote, Puerto Rico was ''foreign in a domestic sense'' [p. …

A Theory of IP's Negative Space

Several recent case studies have explored industries in what Kal Raustiala and Christopher Sprigman have described as intellectual property’s “negative space”: areas in which creation and innovation thrive without significant protection from intellectual property law. These include such diverse industries as fashion, cuisine, magic tricks, stand-up comedy, typefaces, open source software, sports, wikis, academic science and even roller derby pseudonyms. Most scholarship in the area has focused on case studies of particular industries and social movements that occupy IP’s negative space. This Article looks deeper into the nature of IP’s negative space itself, seeking a unifying theory of what makes a type of work well suited to IP’s negative space. The emerging theory sheds light onto what may make a lack of protection preferable to protection for certain types of works and gives us a new tool for optimizing intellectual property law to promote creation and innovation.

A Theory of IP's Negative Space

Several recent case studies have explored industries in what Kal Raustiala and Christopher Sprigman have described as intellectual property’s “negative space”: areas in which creation and innovation thrive without significant protection from intellectual property law. These include such diverse industries as fashion, cuisine, magic tricks, stand-up comedy, typefaces, open source software, sports, wikis, academic science and even roller derby pseudonyms. Most scholarship in the area has focused on case studies of particular industries and social movements that occupy IP’s negative space. This Article looks deeper into the nature of IP’s negative space itself, seeking a unifying theory of what makes a type of work well suited to IP’s negative space. The emerging theory sheds light onto what may make a lack of protection preferable to protection for certain types of works and gives us a new tool for optimizing intellectual property law to promote creation and innovation.

Remarks by Kal Raustiala

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Political Institutions and Human Rights: Why Dictatorships Enter into the United Nations Convention Against Torture

This article addresses a puzzle: dictatorships that practice torture are more likely to accede to the UN Convention Against Torture (CAT) than dictatorships that do not practice torture. I argue the reason has to do with the logic of torture. Torture is more likely to occur where power is shared. In one-party or no-party dictatorships, few individuals defect against the regime. Consequently, less torture occurs. But dictatorships are protorture regimes; they have little interest in making gestures against torture, such as signing the CAT. There is more torture where power is shared, such as where dictatorships allow multiple political parties. Alternative political points of view are endorsed, but some individuals go too far. More acts of defection against the regime occur, and torture rates are higher. Because political parties exert some power, however, they pressure the regime to make concessions. One small concession is acceding to the CAT.For detailed suggestions, I thank Rodwan Abouharb, Emanuel Adler, Lawrence Broz, José Cheibub, David Cingranelli, Jennifer Gandhi, Geoff Garrett, Valerie Frey, Stephan Haggard, Oona Hathaway, Darren Hawkins, Stathis Kalyvas, Judith Kelley, Paul Lagunes, Jeffrey Lewis, Ellen Lust-Okar, Nikolay Marinov, Lisa Martin, Covadonga Meseguer, Layna Mosley, Louis Pauly, Daniel Posner, Kal Raustiala, Dan Reiter, Darius Rejali, Ronald Rogowski, Peter Rosendorff, Mike Tomz, Jana Von Stein, Christine Wotipka, and especially the two anonymous reviewers. I am also grateful for comments from participants at the Kellogg Institute International Political Economy Seminar at Notre Dame; the UCLA International Institute Global Fellows Seminar; the University of Southern California Center for International Studies Workshop; the UCSD Project on International Affairs Seminar; and the Emory University Globalization, Institutions, and Conflict Seminar. For support, I thank the UCLA International Institute, the ETH Zurich, and the University of Puerto Rico, Río Piedras.

The democracy deficit: taming globalization through law reform

Economic globalization has had a chilling effect on democracy since markets now do some of the work that governments used to do through the political process. More than two decades of deregulation have made a healthy economy appear to depend on unrestrained markets. But appearances are misleading-globalization is also a legal and political process. future of democracy in the twenty-first century depends on the ability of citizens to reclaim a voice in taming globalization through domestic politics and law reform. The book's topic could not be more important: how do we adapt contemporary democratic governance- and contemporary administrative law- to the challenge of a globalizing world?-Kal Raustiala, UCLA School of Law Can citizens govern globalization? Aman argues that they can, and that domestic law has a crucial role to play in this process. He proposes to redefine the legal distinction between public and private to correspond to the realities of the new role of the private sector in delivering public services, and thereby to bring crucial sectors of globalization back within the scope of democratic reform. Basing his argument on the history of the policies that led to globalization, and the current policies that sustain it, Aman advocates specific reforms meant to increase private citizens' influence on globalization. He looks at particular problem areas usually thought to be domestic in nature, such as privatization, prisons, prescription drugs, and the minimum wage, as well as constitutional structural issues such as federalism and separation of powers.

The Regime Complex for Plant Genetic Resources

This article examines the implications of the rising density of international institutions. Despite the rapid proliferation of institutions, scholars continue 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 nonhierarchical regimes. The evolution of regime complexes reflects the influence of legalization on world politics. Regime complexes are laden with legal inconsistencies because the rules in one regime are rarely coordinated closely with overlapping rules in related regimes. Negotiators often attempt to avoid glaring inconsistencies by adopting broad rules that allow for multiple interpretations. In turn, solutions refined through implementation of these rules focus later rounds of negotiation and legalization. We explore these processes using the issue of plant genetic resources (PGR). Over the last century, states have created property rights in these resources in a Demsetzian process: as new technologies and ideas have made PGR far more valuable, actors have mobilized and clashed over the creation of property rights that allow the appropriation of that value.We are grateful for comments on early drafts presented at Stanford Law School, New York University Law School, Duke Law School, Harvard Law School, and the American Society for International Law. Thanks especially to Larry Helfer, Tom Heller, Robert Keohane, Benedict Kingsbury, Peter Lallas, Lisa Martin, Ron Mitchell, Sabrina Safrin, Gene Skolnikoff, Richard Stewart, Chris Stone, Buzz Thompson, Jonathan Wiener, Katrina Wyman, Oran Young, and two anonymous reviewers for their feedback. Kal Raustiala thanks the Program on Law and Public Affairs at Princeton for support. We also thank our research assistants, Lindsay Carlson, Lesley Coben and Joshua House.

The Implementation and Effectiveness of International Environmental Commitments: Theory and Practice. Edited by David G. Victor, Kal Raustiala and Eugene B. Skolnikoff. Cambridge MA, London: The MIT Press, 1998. Pp. xviii, 707. Index. $27.50.

The Implementation and Effectiveness of International Environmental Commitments: Theory and Practice. Edited by David G. Victor, Kal Raustiala and Eugene B. Skolnikoff. Cambridge MA, London: The MIT Press, 1998. Pp. xviii, 707. Index. $27.50. - Volume 93 Issue 3

The Implementation and Effectiveness of International Environmental Commitments: Theory and Practice. Edited by David G. Victor, Kal Raustiala, and Eugene B. Skolnikoff. Cambridge: MIT Press, 1998. 737p. $27.50.

The Implementation and Effectiveness of International Environmental Commitments: Theory and Practice. Edited by David G. Victor, Kal Raustiala, and Eugene B. Skolnikoff. Cambridge: MIT Press, 1998. 737p. $27.50.