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The factors that led to the cautionary holdings in Bulova, Vanity Fair, and Asahi are clearly implicated by the use of the domain name seizure tactic. In effect, U.S. domain name policy uses a facially valid jurisdictional claim--over "property" located domestically--to achieve an end prohibited by Bulova and international law generally: the extension of domestic intellectual property law to cover foreign acts by foreign parties. Prescriptive jurisdiction for such a policy is doubtful, because it does not take account of conflicting treaty obligations nor foreign law and avoids entirely the question of whether extraterritorial acts are meant to be covered by the intellectual property statutes that are being vindicated. In violation of Asahi's apparent command, the validity of adjudicative jurisdiction is equally dubious because notice to the domain owner is frequently dispensed with entirely in favor of notice to the domain registrar, and the civil forfeiture statutes place no weight on the interest of foreign sovereigns in disputes involving their subjects. Although U.S. courts have so far failed to enforce the limits suggested by Bulova and Asahi, their apparent violation has the potential to significantly restrict the credibility of U.S. judgments abroad, especially as the Internet becomes more internationalized and the cooperation of foreign sovereigns becomes more essential to its regulation.

Moreover, there is surely a difference between overriding domestic legislative choices by judicial fiat, 170 and respecting - and, to the extent permitted by statutory wording, requiring legislatures to take seriously - the international obligations that the political branches have deemed beneficial to shoulder. 171 While domestic self-determination in copyright law is a key aspect of domestic sovereignty over social and economic policy, 172 much of the policy domain of domestic intellectual property law is also increasingly part of a larger international system. For nations willingly signing on, there is a deliberate bargaining of a possible reduction of control over domestic policy choices in exchange for better protections abroad. 173 Courts should assume that, when the United States enters into international agreements, its actions should be taken seriously. Separation of powers ideals are preserved by the reality that Congress remains able, using express words, to negative any unwanted solicitude the judiciary might have for the nation's international obligations. Then the dispute can shift to the international context, as the United States attempts to justify its non-compliance to its treaty partners at the public international law level.

Undoubtedly, however, intellectual property law is unavoidably "international." Scholars increasingly are turning to texts of international treaties to assess the validity of domestic initiatives and scholarly proposals for intellectual property policy. 173 Put more starkly, recent [*876] legislative activity 174 and government proposals evaluating domestic law 175 demonstrate that there is less and less that is "domestic" about domestic intellectual property law.

Few would likely disagree with the observation made by Graeme Dinwoodie in this journal some seventeen years ago that "it is increasingly impossible to analyze intellectual property law and policy without reference to international lawmaking." 1 International instruments influence the shape of domestic intellectual property law, and, in turn, have become vehicles for exporting domestic norms. 2 And international law can, and should, 3 inform the interpretation of domestic statutes, including those in the area of intellectual property. 4

Intellectual property law is territorial in nature. That is why intellectual property assets have always been favorites among international tax planners. Rapid appreciation, even faster transfer times, and a somewhat vague standard for appraisal and valuation make for an interesting field of play. Transfer the assets to a low tax jurisdiction before the appreciation begins, and you find yourself with a large income stream that is taxed at a low rate. Miss the beat, and you have a large tax hit.

P22 Proper planning of the ownership and use of intellectual property is one of the most significant planning techniques to reduce a company's global effective tax rate and is utilized by most Fortune 1000 companies. Intellectual property, which includes a company's trademarks, copyrights, know-how, and trade secrets, generally constitutes the most valuable asset of any business. The acquisition of a multinational enterprise provides the opportunity for the acquirer to hold and manage its intellectual property that is geographically limited in scope to the U.S. in a U.S. entity and its foreign intellectual property outside of the U.S. through a foreign subsidiary. Future IP that is developed for use outside of the U.S. is developed by the foreign subsidiary and future U.S. IP is developed by the U.S. entity. As such, profits generated pursuant to the exploitation of the foreign IP is not taxed in the U.S.

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Since intellectual property law is territorial in nature, intellectual property creators may own parallel intellectual property rights in a variety of jurisdictions. 59 For example, Wiley has parallel intellectual property rights to publish, print, and distribute its textbooks in both Thailand and the United States. 60 The relationship between these parallel intellectual property rights is really the core of the first sale question posed to the Kirtsaeng court. According to the Court, "[t]here is no international consensus on whether the sale in one country of a good incorporating protected intellectual property exhausts the intellectual property owner's right to control the distribution of that good elsewhere." 61 Without such an agreement, individual countries have chosen their own exhaustion approaches. 62 In Kirtsaeng, the Supreme Court discussed two different exhaustion options. 63 First, a national exhaustion regime holds that a copyright owner's right to control distribution of a particular copy is exhausted only within the country in which the copy is sold. 64 In a national exhaustion regime, each parallel intellectual property right is treated as a separate national right and is fully enforceable in its jurisdiction. 65 The copyright owner may block the importation of even authorized products first sold in another jurisdiction, thereby allowing copyright owners of parallel intellectual property rights to divide global markets to account for differences in supply and demand. 66 So the sale of a foreign edition textbook in Thailand would exhaust Wiley's right to control that edition only in Thailand. Wiley would not have made a first sale in the United States, and thus would still have the exclusive distribution right of the foreign edition textbook within American borders.

As mentioned above, intellectual property law is territorial in nature. No protection will be provided outside national boundaries, and of course not to the non-sovereignty area of outer space. Then, the problem arises as to whether inventions patented on earth enjoy protection when applied in outer space (referring to categories (c), (d) and (e)). The IGA resolved the issue in a restricted sense: for purposes of intellectual property law, national jurisdiction shall extend to a specific part or a flight component of the ISS itself.

Intellectual property rights are geographically limited, and domestic intellectual property law varies across different states depending on each state's domestic policy decisions. Scholars have commented that patentability standards, for example, are fundamentally policy decisions that aim to achieve different policy goals across different states. 217In drafting patent laws, 218different states consider different factors in answering the question of whether the inventor has provided sufficient information to the public in exchange for the patent rights. 219Patent law requires balancing multiple interests so that the patentability standards establish a desirable balance between the rights of the intellectual property holder and the rights of the intellectual property user. 220Each state makes decisions according to its national economy and public interests. 221States in both common law and civil law [*573] jurisdictions may modify intellectual property law judicially, 222and may retroactively invalidate patents for reasons such as failure to meet patentability standards. 223

Determining the definition of the word "domestic" is more problematic. The Oxford dictionaries tend to define "domestic" to mean "of or pertaining to the country"; "not foreign"; "inland." 78 [[Footnote 78 begins]] The Shorter Oxford English Dictionary on Historical Principles defines "domestic" as "housed; intimate, at home"; "of or belonging to the home, house, or household; household, home, family"; "of or pertaining to one's own country or nation; internal, inland, home … ; indigenous; home-grown, home-made...." The Shorter Oxford English Dictionary on Historical Principles, supra note 75, at 593. The Concise Oxford English Dictionary defines "domestic" as "Of the home, household, or family affairs, ([domestic] science, study of household management); of one's own country, not foreign or international (domestic trade); native, home-made; (of animal) kept by or living with man; fond of home life." The Concise Oxford English Dictionary, supra note 75, at 307. The New Oxford English Dictionary defines "domestic" as "of or pertaining to one's own country or nation; not foreign, internal, inland, "home'; indigenous; made at home or in the country itself; native, home-grown, home-made." Oxford English Dictionary 944 (2d ed. 1989). [[Footnote 78 ends]] The Webster's dictionaries, however, define "domestic" to mean "of, relating to, or originating from, the country." 79 The absence in the Oxford dictionaries of the phrase "originating from" is significant: the Oxford dictionaries' definition of "domestic" implies being physically located within jurisdictional bounds. The inclusion in the Webster's dictionaries of the phrase "originating from," however, implies that the words "domestic" and "national origin" have the same meaning. The question is how the Appellate Body would handle a situation where there are two conflicting definitions from competing dictionaries.

By patent protection, I refer to patent-pendency type patent protection, and not enforceable patent rights. Patent-pendency type patent protection refers to the protection an inventor receives by merely filing a patent application with the United States Patent and Trademark Office. The filing date of the patent application establishes a date of invention or priority date as to the information included in the patent application. The pending patent application has superior rights to a later filed patent application by another person. In contrast, enforceable patent rights only accrue when the patent application matures into a granted patent.

Once a company has identified and taken inventory of all of its IP assets, it needs to take action to protect them. There are two basic means of protecting IP: direct and indirect. Whenever possible, it is advisable to employ both direct and indirect means to protect IP, both in the United States and abroad.

Direct IP protection refers to using contracts and individual relationships to protect IP rights, such as using non-disclosure agreements with anyone exposed to the secrets (including employees). This allows IP owners to define the scope of their IP rights and identify when an infringement occurs. However, a key limitation is that IP owners can typically enforce their IP rights only against those with whom they have contractual relationships.

[*19] The disjunctive use of "protection afforded the copyright owner or the remedies available to the copyright owner" makes it clear that the drafters viewed protection and remedies as two separate concepts, and did not mean to lump the first under the second. "Protection" refers to the rights of owners that are protected by the Act. In fact, one of the parties to the discussion about the draft legislation said explicitly: "I think one of the purposes [of eliminating indivisibility] is the purpose of suit - to enable the holder of the separate right to sue." 103 If "one of" the benefits envisioned was the ability to sue, then how could the intent behind the revision as a whole be limited to that benefit? Rather, the differentiation between protection and remedies, and the concept of remedial access as but one of the benefits of revision, establish that the drafters intended to endow the owner of a separate copyright right with all of the rights and benefits enjoyed by the copyright owner. This evidence contradicts the Ninth Circuit's conclusion that Section 201(d)(2) intended to confer less than plenary rights on exclusive licensees.

Legal scholars have long distinguished between "law on the books" and "law in action." The law on the books is "the content of statutes, regulations, and judicial decisions," while the law in action "refers to regularities describing how legal authorities enforce the 'law on the books.'" 182In the previous Part, we surveyed the law on the books as it relates to the enforcement of inbound forum selection clauses. In this Part, we turn our attention to how state courts apply and enforce that law. After describing our methodological approach and offering a summary of our empirical findings, we show that regardless of which method states purport to use in deciding whether to give effect to inbound forum selection clauses, they refuse to enforce them for just a handful of reasons that fall into predictable categories.

To appreciate the conditions under which lawyers need this special hybrid knowledge, let's consider again our earlier car example, this time from the perspective of the lawyer representing the automobile manufacturer. As we saw in Part I, 118 the manufacturer may want to know whether a particular automobile design is, in a broad sense, "legal." Is it, for example, safe enough, or fuel efficient enough, or likely enough to return a reasonable profit relative to other corporate opportunities? For this the lawyer will have to know the law "on the books" from a wide range of sources: statutes, regulations, and judicial decisions. Some of these, as we have seen, incorporate the standards of other disciplines, at a fairly high level of technical refinement: emissions standards, cost-benefit analysis, perhaps even portfolio theory. This knowledge is clearly beyond the ken of the laity; it is, in sociological terms, specialized knowledge. 119 But why need the lawyer's practice link that technical knowledge of the law with knowledge acquired in a university-based, liberal arts education? 120

Legal scholars have long distinguished between the "law on the books" and the "law in action." 198The law on the books is "the content of statutes, regulations, and judicial decisions," while the law in action "refers to regularities describing how legal authorities enforce the "law on the books.'" 199The previous two Sections surveyed the law on the books as it relates to the enforcement of forum selection clauses in federal court. This Section describes how federal courts actually apply that law in the cases that come before them.

Finkel structures Commonsense Justice around one question: "Should the law follow the path laid by community sentiment, or should the community follow the path the law has laid?" (p. 1). He believes that the "law on the books" - as set down in the Constitution and statutes and developed through judicial decisions - must yield to another law: commonsense justice. The latter concept reflects the "intuitive notions [of fairness and justice that] jurors bring with them to the jury box" (p. 2). Commonsense notions "are at once legal, moral, and psychological" (p. 2).

Think of this as the High Road to legal reform. This is reform at the wholesale, rather than retail, level; it aims at direct change in the law on the books, either the codified law of legislation or the common law of judicial precedents. Such reform may, of course, be incremental, rather than radical: small amendments to this code provision or that, rather than sweeping re-codifications; gradual erosion or extension of an existing line of cases, as opposed to reversals of long-standing doctrines and precedents. But, be its progress evolutionary or cataclysmic, this kind of reform is always explicit; if not "on the books" then at least discoverable in the books. This is very much the path to reform that I recommended in my early piece on dead hand control.

We offer a way forward by developing and applying a processual theoretical framework for studying transnational criminalization. We define criminalization as a set of processes through which actors construct legal norms that label certain activities as crimes. This definition encompasses both formal processes of statutory and judicial lawmaking that define criminal behavior ( law on the books) and everyday practices of law enforcement that determine the application of criminal prohibitions ( law in action) (Lacey and Zedner 2017, 59). Criminalization processes are transnational when they involve interactions between actors operating beyond and across national boundaries. We posit that the internationalization of criminal law is best understood through a theoretical lens that not only assesses how prohibition norms are being formalized at the international level, but also evaluates the domestic impacts of these norms. To facilitate such inquiry, we seek to bring criminalization theory into dialogue with sociolegal scholarship on transnational legal ordering and the development of transnational legal orders.

The increased scope of intellectual property rights and the greater judicial protection afforded to them probably explains the exponential increase in the number of patent and trademark applications. The number of applications for plant patents increased from 147 in 1981 to 414 in 1991. 26 Patent applications increased dramatically during the 1980s and