[A2k] Link to full ACTA statement
sflynn at wcl.american.edu
Tue Feb 8 08:09:59 PST 2011
Apologies for unsuccessfully including the full statement in my request
for sign ons.
You can find the entire submission (complete with footnotes and extended
legal argument) at http://infojustice.org/archives/1115
The original request for sign ons with instructions is reposted here:
REQUEST FOR SIGN ONS
Please join fellow legal academics in signing this draft statement to
the administration on the constitutional problem with ACTA.
The submission is open for editing comments and signatures until FRIDAY
FEBRUARY 11 AT 4PM eastern standard time.
The submission is open to any self identified "legal academic." We
welcome part time teachers and such and also academics from other
disciplines that work on international trade law (international
To sign on or edit, send an email to me and cc Mike Palmedo
(mpalmedo at wcl.american.edu). Please indicate if your signature relies on
acceptance of any suggested edits.
The initial signatories to the statement include myself, Brook Baker,
Anthony Falzone, Lawrence Lessig, David Levine, Kevin Outterson, Frank
Pasquale and Christopher Sprigman.
The summary of the argument of the submission is pasted below.
SUMMARY OF ARGUMENT
We write to call on the Obama administration to comply with the
Constitution by submitting the ACTA to Congress for approval.
The executive branch lacks constitutional authority to enter
international agreements on intellectual property without congressional
consent. The regulation of intellectual property and of foreign commerce
that are at the heart of ACTA's terms are Article I section 8 powers of
Congress; the President lacks constitutional authority to enter
international agreements in this area as sole executive agreements
lacking congressional authorization or approval.
The unconstitutionality of the process by which the Obama Administration
intends to implement ACTA is further highlighted by the fact ACTA will
constrain U.S. law by locking in the policy choices ACTA makes and the
requirements it imposes. The choice of whether to adopt substantive
constraints on U.S. law must be made with Congressional participation.
That participation is even more critical here, because ACTA was drafted
and negotiated under unprecedented and deliberate secrecy -- a
non-accountable process that excludes the meaningful participation of a
wide range of interests. The process by which ACTA was created and the
means by which the Obama administration intends to implement it is
undemocratic and unconstitutional. Together, they create a dangerous new
process for international intellectual property lawmaking that should be
Sean M Fiil Flynn
Program on Information Justice and Intellectual Property
American University Washington College of Law
Washington D.C. 20016
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