Power, Norms, and International Intellectual Property Law

This Article begins with the premise that international law is the net result of global processes of interactions among state and non-state participants in the international system. The Article builds on the author’s previous work by proposing a theory of international law that fills the interstices between private and public international law. Participants generally deploy power and invoke legal and social norms in pursuit of interests and in response to the strategies of other participants. Eventually, outcomes that reflect both power and norms result, and these outcomes in turn modify norms and reallocate power.

New outcomes then follow in future conflicts in an iterative, evolutionary, interactive process. This Article tests this thesis against the global intellectual property (IP) system. International IP scholarship should account for power and could be enriched by the typology presented in this Article because international IP law lacks a comprehensive set of enforceable legal norms.