Document Type

Article

Publication Title

Cardozo Law Review

Abstract

As the pieces in this Issue suggest, Brexit will, in theory, free the United Kingdom (U.K.) from the constraints and burdens of membership in the European Union (E.U.). It will transfer sovereignty back to the people from what was perceived as the technocratic rule of Brussels; replace the jurisprudence of the Court of Justice of the European Union (CJEU or Court of Justice) with the adjudicative power of national courts; and allow the U.K. to tailor its market regulation to the particular exigencies of its own economy. Whether, as a general matter, the restoration of a classic Westphalian state enhances value either nationally or globally is an issue we leave to others to debate. We ask a different question: we explore how well the rhetoric of Brexit comports with the reality and the institutional economics of nation-state lawmaking in an era of global trade and digital communication technologies. We use intellectual property (IP) law as a concrete example. We think it a good context in which to consider the impact of the U.K.’s exit from the E.U. Copyrights are deeply intertwined with culture and education, patents have significant implications for health and safety, and trademark law sets the rules of the road for the marketplace in products and services. What is more, the public, judges, and legislators have come to realize just how much IP law—technical though it may appear—can interfere with access to things that are critical to their lives. Since the critique of one-size-fits-all IP regimes is well known and widely accepted—and is specifically triggered by concerns about culture, education, health, and competitive markets—some might think that this is an area where the U.K. would quickly move to restore self-rule and put control over access to cultural and technological materials into the hands of a democratically elected legislature, accountable to the people for its actions. And yet IP regulation that transcends the nation-state is intimately associated with the incentive system of the Knowledge Economy. Intellectual property mediates the infrastructure of the modern—global—business environment. In this climate, worldwide protection is necessary. It protects innovators from free-riding rivals and permits firms to decouple research, production, and manufacturing functions and aggregate consumer demand. It is thus not surprising that nations with robust creative sectors embed themselves in a rich weave of international, regional, and bilateral obligations. For the U.K., that includes participation in the E.U., for that single political alignment situated the U.K. within that transnational web. Because exit would present a significant loss of the efficiency gains, the U.K. will, to maintain a robust creative sector, be forced to recreate much of what it previously enjoyed. We thus conclude that the projected sovereignty gains of Brexit are unlikely to be fully realized. By resituating itself in the international regime outside the E.U., we do foresee some room for the U.K. to reconstitute its IP regime and engage in national experimentation. But we also predict an increased importance of transnational private ordering as a means of securing efficiencies; the rise of other harmonization efforts, which may be no more transparently negotiated or balanced than was the case with measures developed through E.U. lawmaking institutions; and the development of new forms of political convergence. Some of these arrangements may present opportunities for innovation in knowledge governance, but others raise concerns about increased costs, decreased accountability, and other difficulties. We therefore question whether the transaction costs of the bureaucratic, diplomatic, and private machinations necessary to duplicate E.U. membership are worth the candle. While our study is limited to IP, we expect that many of the features that we discuss are true of other areas of law as well.

First Page

967

Volume

39

Publication Date

2018

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