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Financial Fraud Law

Anti-Counterfeiting Agreement Needs Congressional Approval, Law Professors Say

Fifty U.S. legal scholars have sent an open letter to the Members of the Senate Finance Committee, asking each of them to “exercise your Constitutional responsibility to ensure that the Anti-Counterfeiting Trade Agreement (ACTA) is submitted to [Congress].”
 
The letter responds to the Department of State Legal Advisor Harold Koh’s March 6, 2012, letter to Senator Ron Wyden, which claims that ACTA did not require Congressional approval because it received prior authorization by the 2008 PRO-IP Act. The law professors’ letter explains:
 
First, the plain language of [the PRO-IP Act] does not authorize [the Office of the United States Trade Representative (USTR)] to bind the US to any international agreement. Rather, the section merely describes the purposes of a “Joint Strategic Plan against counterfeiting and infringement,” to be coordinated among multiple agencies by the Intellectual Property Enforcement Coordinator (IPEC). . . .
 
Second, the PRO-IP act cannot be an ex ante authorization for ACTA because it was not temporally ex ante. The ACTA negotiation began in 2007. PRO-IP was not passed until 2008[.]
The letter concludes that “the Administration currently lacks a means to Constitutionally enter ACTA without ex post Congressional approval.”
 
Sean Flynn, Associate Director, Program on Information Justice and Intellectual Property, American University Washington College of Law, says that "Unfortunately, these kind of Constitutional issues over whether Congress, in fact, provided ex ante authorization for a specific treaty are hard (perhaps impossible) to litigate. The real solution, if Congress thinks the executive has overstepped its authority, is exactly what Senator Wyden has proposed – revoke any claimed ex ante authorization so that, to bind the U.S., the agreement must pass through Congress. Then we can finally have a public debate over the desirability of that set of policy choices that we were denied through the secretive negotiation process."
 
Margot Kaminski, Executive Director, Information Society Project at Yale Law School, added that, "USTR knows that if ACTA goes to Congress, there's a risk that ACTA will be amended or rejected. So USTR keeps offering inadequate justifications for keeping Congress away. First, USTR claimed the President could go it alone; now, they claim that Congress already authorized ACTA. Neither of these things are true. The Constitution requires Congress to be involved in ACTA. We aim to encourage Congress to execute its Constitutional responsibility, rather than permit the executive branch to pretend that Congress has already had its say."

The professors who signed the letter are:

Margot Kaminski
Yale Law School
 
Sean Flynn
American University Washington College of Law
 
David S. Levine
Elon University School of Law
 
Christopher Jon Sprigman
Virginia Law
 
Brook Baker
Northeastern University Law School
 
Kevin Outterson
Boston University
 
Frank A. Pasquale
Seton Hall Law School
 
Ira Steven Nathenson
St. Thomas University School of Law
 
Dan Burk
University of California Irvine Law
 
Pam Samuelson
Berkeley Law
 
Jack Balkin
Yale Law School
 
Susan Sell
George Washington University
 
David G. Post
Temple University
 
Kenneth L. Port
William Mitchell College of Law
 
Peter Jaszi
American University Washington College of Law
 
Deborah Tussey
Oklahoma City University School of Law
 
Rebecca Tushnet
Georgetown Law
 
Irene Calboli
Marquette University Law School
 
Jessica Silbey
Suffolk University Law School
 
Rita Heimes
University of Maine School of Law
 
Shubha Ghosh
University of Wisconsin Law School
 
Jason Shultz
Berkeley Law
 
Hannibal Travis
Florida International University
 
Aaron Perzanowski
Wayne State University Law School
 
Laura Bradford
George Mason University Law School
 
Cynthia M. Ho
Loyola University Chicago School of Law
 
Peter Yu
Drake University School of Law
 
Annemarie Bridy
University of Idaho and Princeton University
 
Robert A. Heverly
Albany Law School of Union University
 
Mark P. McKenna
Notre Dame Law School
 
Lea Bishop Shaver
Maurice A. Deane School of Law, Hofstra University
 
Howard C. Anawalt
Santa Clara University Law School
 
Andrew Chin
University of North Carolina School of Law
 
Paul Edward Geller
General Editor, International Copyright Law and Practice
 
Lawrence Lessig
Harvard Law School
 
Eric Goldman
Santa Clara University School of Law
 
Connie Davis Powell
Baylor School of Law
 
Margo A. Bagley
University of Virginia School of Law
 
Llew J Gibbons
University of Toledo College of Law
 
Brenda  Reddix-Smalls
North Carolina Central University School of Law
 
Mary LaFrance
William S. Boyd School of Law University of Nevada, Las Vegas
 
Deirdre K. Mulligan
UC Berkeley Center for Law & Technology
 
David R. Johnson
New York Law School
 
Elizabeth Townsend Gard
Tulane University Law School
 
Tyler T. Ochoa
Santa Clara University School of Law
 
Timothy K. Armstrong
University of Cincinnati College of Law
 
Brian Rowe
Seattle University School of Law
 
Eric E. Johnson
University of North Dakota School of Law
 
Hiram A. Meléndez-Juarbe
University of Puerto Rico Law School
 
Srividhya Ragavan
University of Oklahoma College of Law
 

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