- From: Seth Johnson <seth.johnson@realmeasures.dyndns.org>
- Date: Thu, 21 Feb 2002 16:07:04 -0500
- To: www-patentpolicy-comment@w3.org
(Reply forwarded from Free Software Law Discussion list, fsl-discuss@alt.org) -------- Original Message -------- Date: Thu, 21 Feb 2002 02:27:05 -0500 From: Lynn Winebarger <owinebar@free-expression.org> On Thursday 21 February 2002 00:04, Steve Waldman wrote: > 1) Am I mischaracterizing what goes on? I haven't yet > looked into these treaties in a careful way. I just > keep noticing they are used to justify a lot of onerous > stuff, here, in Europe, and elsewhere. > Seems that way to me as well. > 2) Have these sorts of treaties ever been subject to a > head-on constitutional challenge in the United States? > By binding Congress to pass future laws or face > penalties, without providing for detailed legislative > deliberation on the specifics of the required laws, > these treaties seem to do an end-run around the > legislative process, prejudicing the debate on future > laws so that their passage is predicated not only on > the laws' inherent merit, but on the avoidance of > artificial consequences created by the international > treaties. Since treaty-making is an executive function*, > the effect of all this is to give the executive branch > greater power over the passage of future laws than the > US Constitution intends. Treaties that bind a country > to pass future laws thus seem to me an unconstitutional > violation of the constitutionally enshrined separation > of powers. Treaties (in the US) do have to be agreed to by the Senate, and on occasion they do exercise their perogative to disagree in this regard (the League of Nations comes to mind). I don't know if there has been a case in the past, but I think there are some types of terms that would be so blatantly egregious that they would be struck down by the Supreme Court as outside the power of the federal government to enact. For example, if there was a treaty requiring the US to adopt a national religion, that should be struck down. The executive and legislative branches can agree to whatever they want to, but it would be outside the scope of their power to implement. The same reasoning should go to other kinds of treaties, but WIPO isn't as clear cut a case (for the current USSC, anyway). It all depends on whether they consider the explicit enumeration of IP law-making as a power of the Congress as excluding it from being derived from other powers granted the Congress(*) and limiting it to the purpose given (advancing the arts and sciences). With true literalists, you'd think this would be in the bag (for us), but given the shenanigans of a year ago, the actual judicial doctrine of the conservatives on the bench is something of a mystery. Of course, I don't know whether the USSC would actually strike down a treaty per-se, or just the laws attempting to implement the treaty. I think they clearly have the power to do the latter, but it'd be nice to think they could put a check on treaty-kiting by the other two branches (so to speak). Lynn (*) like regulating interstate commerce. _______________________________________________ fsl-discuss mailing list fsl-discuss@lists.alt.org http://lists.alt.org/mailman/listinfo/fsl-discuss C-FIT Community Discussion List List Parent: seth.johnson@RealMeasures.dyndns.org C-FIT Home: http://RealMeasures.dyndns.org/C-FIT To Subscribe/Unsubscribe: ------------------------------------------------------------ Send "[Un]Subscribe C-FIT_Community" To Listserv@RealMeasures.dyndns.org
Received on Thursday, 21 February 2002 16:13:12 UTC