Abstract: For years, the United States has included intellectual property (“IP”) law in its free trade agreements. This Article finds that the IP law in recent U.S. free trade agreements differs subtly but significantly from U.S. IP law. These differences are not the result of deliberate government choices, but of the capture of the U.S. trade regime.
A growing number of voices has publicly criticized the lack of transparency and democratic accountability in the trade agreement negotiating process. But legal scholarship largely praises the “fast track” trade negotiating system. This Article reorients the debate over the trade negotiating process away from discussions of democratic accountability to focus instead on the problem of regulatory capture. The Office of the U.S. Trade Representative (“USTR”) is exempt from the Administrative Procedure Act and functionally exempt from the bulk of the Federal Advisory Committee Act. As a result, the USTR is likely to be captured by private parties through information asymmetry and to negotiate against the public good. Subject matter areas that are subject to collective action problems, such as intellectual property law, are particularly likely to be captured in the USTR.
The institutional capture of the USTR has affected the substance of exported IP law. Negotiators are tasked with exporting U.S. law, but deliver the law in versions favorable to vested interests. Negotiators change unfavorable domestic rules into more pliable international standards, codify favorable domestic judicial interpretations as international rules, and omit parts of domestic law that balance IP protection against other values. These distortions arise because the USTR engages in “regulatory paraphrasing”: it paraphrases the current state of U.S. law rather than exporting the words of U.S. statutes. This Article identifies examples of this captured paraphrasing, explores its domestic and international consequences, and proposes that Congress reinstate Federal Advisory Committee Act requirements to prevent this capture from continuing.