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A drone2 hovers over a pre-dawn agricultural landscape, assessing the soil and its moisture content. Utilizing its programmed sensors, the drone adjusts and disgorges a thin mist of pesticides, measured and calibrated to that specific moment in time and space, all while calculating wind direction and temperature.3 Meanwhile, your smart phone, without touch tapping, computes your estimated work commute time based on present and future traffic and weather conditions. The phone announces a lunch appointment scheduled later that afternoon and displays an Instagram photo of the appointment guest. A Nest thermostat,4 which can detect your presence in any room, adjusts the temperature as you leave your home.5 The low energy radio ‘presence’ tags on your belt loop sends a text to the office that you’re leaving home and signals the coffee machine to begin making coffee or dispensing juice.6 This same system powers Square Wallet,7 which allows you to walk into the local Starbucks on your way to work and to pay by simply ordering.8 The radio tag on your body and the tag into the world is a key component of interconnectivity9 or as some have called it “the Internet of Everything.” This predictive sensing10 component in interconnectivity is not merely joined to convenience tasks. Rather, these predictive sensors utilize algorithms to determine, in advance, whether you are fit for a particular job or employment position.11

You arrive at work and gain entrance to the facility after a device affixed to an entryway recognizes you. The device employs facial recognition software and analyzes biometric12 information to determine who gains access to the space. At work, your current project relies on a microscale 3-D printer, which uses ink made from various synthetic and biological materials.13 The printer’s product output employs layers of artificial cells to create human organ tissue with layers, where each layer responds separately to environmental climatic fluctuations.14

At its core, IP in America “is understood almost exclusively as being about incentives.”27 The history of blacks in the arts is one of unparalleled innovation and creativity, especially in the realm of music and dance. There has always been “an overwhelming prevalence of black innovators in jazz,”28 as well as blues, ragtime, rock-and-roll, and today’s hip-hop music. The history of black artists within U.S. IP law, however, has been one of appropriation, degradation, and devaluation beginning with the creation of the nation until the 1950s and ’60s. In the arena of music, there is no need to assume mass appropriation and disparate treatment of black composers and performers. Time after time, foundational artists who developed ragtime, blues, and jazz found their copyrights divested, and through inequitable contracts, their earnings pilfered.29 I argued elsewhere that for a long period of U.S. history, the work of black blues artists was essentially dedicated to the public domain.30 The public domain “can most broadly be defined as ‘material that is unprotected by intellectual property rights, either as a whole or in a particular context, and is thus “free” for all to use.’”31

Similarly, it has been argued that with respect to black artists “copyright law . . . was created without deference to the interests of large segments of society,” including women and minorities.32 Indeed, my previous work demonstrates that five copyright structures disadvantaged black cultural production.

At first blush, as Alex Johnson, Jr. has remarked, “the law of trademarks would seem to have little to do with issues of race and racial identification.”50 Trademark law provides protection to trademark owners against unauthorized use of their own or a similar mark, when it is likely to lead to consumer confusion.51 On closer examination, however, Johnson demonstrated that “the principles of trademark law provide surprising insight into the formation of dichotomous racial classifications in the United States.”52 Trademark law is inextricably tied to advertising and marketing. As Desiree Kennedy pointed out, advertising “is an important means of public discourse . . . [and] . . . is instrumental in affecting viewers’ perceptions of their world and their interactions with others.”53 Further, Lew Gibbons noted, modern trademarks play a large role in shaping “individual and group social identity.”54 The history of advertising, and the role of trademarks therein, is one rife with stereotypical images.55

Trademarks used in advertising can impact more than just commercial transactions; media images “are frequently the predominant source of information many have about people of color.”56 In the same way that “coon” music in early America reflected derogatory anti-black stereotypes, so did trade symbols used to sell products. Historically, trademarks and symbols almost perfectly replicated cultural stereotypes about black men and women. From Sambo and Ratus, the grinning chef on the box of Cream of Wheat cereal, to Uncle Ben and Aunt Jemima, trademark law essentially legalized and promoted the use of stereotypical representations of blacks and other minorities. Additionally, it has been said that “twentieth century white identity was forged in the crucible of Jim Crow iconography, including Aunt Jemima, Uncle Ben, and blackface minstrels.”57 These idyllic southern stereotypes of the smiling, happy black domestic servant could be seen as “myths [that] masked the ugly violence of lynching, disenfranchisement and segregation.”58

Black people, once owned as property and now the main (if not the exclusive) target of mass criminalization and incarceration and all the notso-deadly and deadly actions of modern policing and its extensions, understand that property remains a central roadblock in our collective quest to figure out how to both live differently and better together. In the following pages I will not only be suggesting that the abolition of policing and incarceration are necessary for Black people to have their full lives and their full breaths acknowledged, I will be arguing that the abolition of property is also central to this endeavour. It is precisely because of Black peoples’ intimate relationship to property as both an idea and an actual practice as a result of having been property ourselves, that we understand that the entire carceral network and the innumerable problems that afflict it are intimately bound up with modern conceptions of property, because in many ways we are the foundation of the idea itself. I am not making a case for Black people’s exceptional experience as an oppressed group. History, recent and ancient, has already made this exceptionality abundantly clear. I am suggesting that our long history of thingification, and how we have resisted it, stands as a political and intellectual blueprint for how we can transform all of human life. We know that some of the ghastliest experiments in the history of the last five hundred years or more have been enacted on Black people and we further know that to recover from those experiments something more radical than reform is necessary.

One of plantation slavery’s most important and still living legacies is the diffusion of the ideas that came along with it and how these ideas influence policing in both its broadest and most restricted forms. Given that modern policing in the Americas, as we have discussed, was created to police the property that was Black flesh, it should not be surprising that policing continues to remain hostile and brutal to Blacks in the Americas; and, one can confidently say, beyond the Americas too. Policing is central to how Black people experience life even when they are not having encounters with the actual police, because white people remain, as Frank Wilderson III, a co-founder of the Afropessimism school, put it, “deputized” all the time.18 This is just one of the ways that the plantation persists, shaping actions, attitudes, and behaviours. White deputization works to police Black people in all manner of ways, especially in the West—from modes of speech, dress, and attitudes to suspicion, threat and assumed danger. The archetypal figure of the big, threatening Black man is an important element of this dynamic, alongside the belligerent, angry Black woman. Long embedded and cemented stereotypes of Black people are often experienced and understood to be threats to white people and their ideas of what is appropriate and even safe; threats that therefore must be subdued or policed. Of course, this form of banal, everyday policing can and often does result in more official state policing too.

- I think this works against black people reading framework/limits offense like t-tactics too because it talks about how black institutions also use out of placeness

There are histories and stories of places throughout the Americas, even in putatively Black countries, where Black people know not to go, even today. Now that tourism has replaced the plantation as the primary sources of revenue in many of these regions, places frequented by tourists (who are almost always assumed to be white), like certain higher-end bars and restaurants, are often off limits to Black people. These new plantations by the sea, as Derek Walcott, the Caribbean Nobel Prize-winning writer and artist, called them, are shaped by the long history of the older plantation model still.16 In many countries beaches and parks are also off limits, if only informally, as are the neighbourhoods of the small-pocketed descendants of white plantocracy, even after all these years. The gated condominium and time-share communities that have sprung up share similar dynamics. Black people only show up in these places as (service) labour, as police and private police, or, on rare occasions, as exceptionally rich individuals whose wealth buys access normally denied. But by and large Black people retain an outsider status in such spaces.

The viewpoint that binds federalism, development, and democratization is heavily linked to neoliberal economics where, in broad terms, the preference is less of government and more of market. Particularly needed to make this work is the redistribution of power from central to subnational levels of government and the establishment of market facilitating institutions, which is attributed to what scholars call the neo-institutionalist project. In doing so, it fosters efficiency, encourages innovation, and limits predation. This kind of thinking has been prominent among international development organizations such the World Bank, USAID, and the ADB that, in turn, has influenced many decentralization projects in developing countries in the 1980s and 1990s including the Philippines. However, the link between federalism, development, and democracy is not as straightforward as one may think it is. Empirical evidence from the extensive literature on decentralization and federalism is, at best, mixed. LOCALIZING DEVELOPMENT The sweeping statements that connect federalism and development in the current debates in the country are worrying. There are many aspects of development that people assumed as true such as the belief that raising individual incomes will reduce inter-jurisdictional disparities, or that a decentralized fiscal policy will allow for better matching of demands and eventually overall satisfaction of needs of the community. However, economic development is unavoidably uneven and this has little to do with the presence or absence of a decentralized fiscal policy. Some scholars believe that the reason for this unevenness has more to do with the place’s histories rather than policies. In fact, policies emerge as a response to the contextual challenges rather than the other way around. In some cases, economic development preceded the demand for autonomy and not the other way around. Hence, more than the distribution of goods and services, decentralization as a policy should consider how power is distributed between the state and society. Particularly interesting would be to determine whose interests are at play, how production was pursued, what the nature of the relationship is between public and private sector, and how the labor-management relations is structured. It will be irresponsible to talk about the federal project that is detached from the social realities, local government capacities, and histories of particular places. The tendency to discuss its consequences from a national perspective is therefore misleading. Any discussion on the effects of a multilevel system of governance on development must be localized, because after all, development happens in particular places. LOCALIZING DEMOCRACY Neo-institutionalists embrace rationality in decision-making and therefore assume that decentralization and federalism will neutralize vested interests and therefore lead to democratization. However, diverging outcomes are seen across municipalities, cities, and provinces in the Philippines’ 27 years of devolution. This is also true even across countries and regions. Why is there so much disparity even though spaces for citizens participation in local development and planning is in place? One way of understanding this is to look at democracy not just a state but as a process that requires strong and genuine local opposition parties that will continuously challenge the status quo. When preferences are not expressed in the people’s votes, then there is very little opportunity for democracy to deepen. If there is one concern that must be raised at this point, it is the fact that local predatory powers remain resilient despite the establishment of democratic institutions after Martial Law. Democracy has shifted power from the top to below, but it was mostly the local elites that benefited from this. That the country is dominated by political dynasties, some as old as a century, is an indication of power not being able to permeate to the grassroots. The current federal project should not be hijacked by local predatory interests. What we do not want to happen is to transfer power to the local level but there is no avenue for local power to be contested. A broad range of societal actors should be allowed to take part in the discourse and debate on the technical, legal, and political aspects of federalism. Cases of decentralization as a “failed experiment” in some African and Southeast Asian countries are attributed to it being an external project not rooted on the quality and capacity of the country’s local participatory institutions. And in cases where citizens participation is observed, they remain to be passive players in local policies and politics. FEDERALISM AS SOCIAL JUSTICE A restructuring of institutions does not guarantee the intended reform outcomes. Hence we must be cautious to assume that decentralization and federalism leads to development and democratization. This points to two important intermediaries that connect federalism, development, and democracy. First, we know that institutions matter, but which ones? And second, do these institutions support genuine local political competition, or do they perpetuate predatory tendencies that stifle participation in the local policy processes? Particularly for developing countries, it must be pointed out that federalism’s role is not creating growth at the local level, but redistributing economic benefits that would narrow the gap between the rich and poor. In other words, development in the context of decentralization should not be about growth, but it must be about social justice. Debates therefore should focus on how the processes can be fair and inclusive rather than the normative principles behind. What it means to be poor in one municipality is different in another. Therefore, what it will take to correct this inequality should be different from one place to another. In doing so, institutional reform policies must take into account the history, context, and specificity of the place or places. Local political realities constrain even the most well-thought and well-designed policy. The path toward greater local autonomy, whether in a devolved or federal form, should be gradual but strategic because the constraints that our local governments have are deeply embedded. The gravity and seriousness of these constraints necessitates a process of reform that is mindful of the realities of the local institutions. It, therefore, should not be viewed as simply a technical or policy strategy, but a political process that is influenced by the distribution and contestation of power. Hence, to look at federalism as this one pill that cures the illnesses of political and economic inequality is a dangerous path to undertake. It is important that we distinguish between symptoms and causes. If not, we might, at the end of the process, end up be being more sick than well.

Constitutional review has spread around the world in recent decades, and various theories have arisen to account for this development. We have canvassed several different types of theories: (1) ideational theories which view constitutional review adoption as a product of a growing consciousness of the rule-of-law and protection of individual liberties; (2) coordination and commitment theories that draw on functional political logics of federalism and economic growth; (3) electoral market theories that hold that constitutional review is adopted when constitutionmakers envision themselves out of power after the adoption of the constitution; and (4) diffusion theories that posit that constitutional review is adopted in response to international audiences and constitutional developments in foreign states. Drawing on a new and unique quantitative dataset that documents the development of this institution across the globe since 1781, we used a fixed effects spatial lag model to develop the most extensive empirical test so far of these alternative accounts. Our results provide strong support for the insurance-based theory, and less support for the alternative accounts. The adoption of constitutional review is above all a response to domestic political incentives, rather than ideas, the demands of federalism, or diffusion pressures. The lack of support for diffusion-based accounts is particularly important, given that other work has demonstrated the role of diffusion with regard to constitutional provisions on human rights. We suggest that this reflects the relatively low cost of adopting rights provisions relative to institutional structures in national constitutions. Rights may represent “cheap talk,” while institutions are likely to develop a self-enforcing quality so that constitutional designers must treat them as involving higher stakes.

A. Centralized Federalism Those in favor of centralizing environmental decision making note that federal intervention brings with it a number of important benefits: (i) it is the most efficient way to address spillovers or transboundary pollution; (ii) it provides a degree of uniformity for manufacturers and investors; (iii) it produces economies of scale; and (iv) it promotes distributive justice and a minimum standard of environmental quality, thus preventing a race to the bottom among the states. 1. Interstate pollution and spillovers. Proponents of centralized federalism argue that decentralized environmental decision making can create welfare losses and externalities - costs (or benefits) not fully internalized or priced by the existing market system - that are not easily addressed on a state-by-state basis. n92 In the absence of federal regulation, states [*419] have an incentive to pollute excessively because they are able to externalize the costs of pollution while maintaining the economic benefits of the activities that produce that pollution - such as jobs and tax revenue. Daniel C. Esty argues that "when problems are transboundary in scope, and especially when jurisdictions are in separate countries, decentralized enforcement breaks down entirely." n93 Therefore, "because state boundaries often do not fully encompass airsheds and watersheds, interjurisdictional externalities arise. Given a fixed extent of pollution, it is axiomatic that decentralization will create more borders and therefore more transboundary spillovers." n94 Empirical evidence - along with economic theory - suggests that states and industries will under-provide public goods and positive externalities (because these go uncompensated) but will over-produce negative externalities (because their cost is distributed throughout all of society). "For example, prairie potholes in South Dakota perform various ecological functions. Some of these functions, such as providing habitat for migratory waterfowl, may provide substantial benefits to residents of other states for which South Dakota is not compensated." South Dakota thus lacks a full incentive to sufficiently protect and manage Prairie potholes. n95 "Similarly, ... the existence of Yellowstone National Park provides benefits to all American citizens for which Wyoming and Montana are not compensated." They thus lack the incentive to invest fully in conserving the park. n96 Along these lines, Thomas W. Merrill notes that state environmental policymakers have been reluctant to pursue meaningful regulation of transboundary or interstate pollution. n97 Merrill has identified six factors complicating state efforts to address such "spillover" pollution. First, states often disagree on questions of attribution and whether a source state is legally [*420] responsible for pollution emanating from its facilities. Second, states disagree on questions of causation, or on what standards of proof are appropriate to establish that their pollution injured another state. Third, they differ on questions of standard care and liability, or on whether or not the source state causing injury has acted unreasonably or negligently. Fourth, even when these first three factors are agreed upon, most states will disagree over an appropriate remedy or course of action. Fifth, most states have a litigate-or-settle mentality, and are therefore reluctant to engage in lawsuits given uncertain outcomes and expenses, especially losses in the form of attorney fees and costs. And sixth, few cases of pure or unidirectional transboundary pollution exist. Instead, all states involved in negotiations are usually responsible for pollution going somewhere; that is, pollution is reciprocal. Most states will therefore ignore such problems completely rather than risk admitting liability once discussions about interstate pollution commence. Given that these six factors often compound together, Merrill concludes that the reality is that a legal system does not act like a machine, automatically churning out the prescribed response to identified problems. Instead, it represents a kind of regulatory commons, where effective action is dependent upon alliances of groups overcoming collective action barriers and pressuring administrators to respond. If structural factors act as an impediment to achieving effective regulation in the international arena, it is not unlikely that they will also frustrate effective collective action within a developed legal system. n98 Christina C. Caplan adds that addressing environmental spillovers in a decentralized system is virtually impossible for a number of reasons: First, leaving states to negotiate solutions amongst themselves is time-consuming and costly. Second, negotiation alone may be ineffective, since upwind and upstream states do not suffer the social costs of pollution, and thus have little political incentive to take these costs into account when setting their environmental policy... . Third, downwind and downstream states have little bargaining power with upwind and upstream states. Their only leverage is the threat of a nuisance suit, but such litigation is [*421] time-consuming, expensive, and likely to fail on issues of causation. n99 In this "regulatory commons," states from which pollution originates have little incentive to curb interstate pollution since they benefit from externalizing the harmful effects while enjoying the economic benefits of polluting. Bilateral exchanges and bargaining between the source state and injured states to minimize losses from the spillover are costly, and the position of the injured states is typically weakened precisely because of the dispersion of pollutants. Ultimately, as Rena I. Steinzor notes, devolution, taken to its logical extreme, will cause unacceptable - and irrevocable - harm to [people's] core interests. For state and local officials, unrestricted devolution means that they must shoulder primary responsibility for solving difficult problems, including transboundary pollution. For industry, unrestricted devolution could mean either that chronic violators gain competitive advantage in states with weak enforcement or that a patchwork of expensive and contradictory state regulation emerges. And for the public, unrestricted devolution means not only losing ground in our steady progress to protect the natural environment, but postponing, once again, the long-overdue campaign to conquer maladies ... that so severely diminish the enjoyment of life. n100 2. Uniformity and consistency. Advocates of centralization point out that single federal standards make for a more efficient regulatory environment than a multiplicity of state standards. Differing state standards tend to heighten barriers to interstate trade, and uniformity helps manufacturers and industry by providing a consistent and predictable statutory environment. n101 Proponents of centralized [*422] federalism point out that centralization and uniformity can, in some situations, reduce social costs. A single national currency is cheaper to use than fifty separate state currencies. A uniform national gauge for railway tracks makes more sense than a patchwork of competing rules. Consider the history of daylight saving time, a mechanism recently utilized by the federal government to reduce energy consumption. For a brief period in the late 1950s, Minnesotans waged a battle over whether to adopt daylight saving time. While a majority were in support of "fast time," as it was called then, rural farmers complained that they could not get into the field any faster, "because the morning sun does not dry the dew "on daylight savings time.'" n102 Unwilling to take a firm stand either way, state legislators passed a bill that allowed some counties to adopt their own rules. In the meantime, an alliance of movie theater owners, worried that people would not go to the movies when it was light out, sued the state. Their efforts backfired when the Minnesota Supreme Court issued a ruling that barred counties from adopting a different time from the rest of the state and encouraged the state legislature to resolve the issue. But, in a contortion of legal reasoning that would make a justice's eyes cross, the state's Attorney General declared that the high court's action could not be enforced against counties that kept whatever time they wanted. The result was that some parts of the state were on a different time than others - including within the state capitol, where the Governor's Office adopted daylight saving time, while the Legislature and Supreme Court remained on standard time. n103 Minnesota's rebel counties were joined by others across the nation, until a tangle of state and local legislation created as much confusion as a British farce. At one point, if you drove the thirty-five miles from Steubenville, Ohio to Moundsville, West Virginia and wanted your watch to keep local time, you would have to change it seven times en route. n104 The chaos created by multiple time zones could not stand for long. Congress tired of the hodgepodge of time zones dividing the [*423] nation and in 1966 passed a law that preempted the states and made daylight saving time uniform across the country. Under the 2005 Energy Policy Act n105 signed into law by President George W. Bush on August 18, 2005, daylight saving time was moved up to the second Sunday in March, starting in 2007, in an effort to reduce peak electricity loads in the Midwest and Northeast. n106 Thus, Steven G. Calabresi comments that "sometimes variety is not the spice of life; as to some items it may be a downright nuisance and an expensive one at that. National government eliminates these potential deadweight social costs with general gains in social utility as a result." n107 In terms of environmental policymaking, it may make sense in some circumstances to have single, harmonized standards instead of multiple, confusing rules and regulations. 3. Economies of scale. Absent centralized regulation, independent state regulators can duplicate each other or engage in time-consuming and complex negotiations to divide labor and resources. Technical capacities such as data collection are generally weakened by devolution. Advocates for centralized federalism conclude that "it makes no sense to ask every state, city or town to measure the level, size, and type of particulates in its air, determine their connection to respiratory failure and other health problems, identify the safe level of emissions, and design cost-effective policy responses." n108 The federal government is much better suited for "data collection and quality control, fate and transport studies, epidemiological and ecological analyses, and [highly technical] risk assessments" because of its fiscal power and established research organizations. n109 As one prominent example, consider that the National [*424] Weather Service, a federal agency that "measures rainfall with more than 10,000 gages nationwide, providing data for weather and climate forecasts," and collects snowfall data in cities and rural areas at more than 670 sites. n110 A state-by-state approach towards such a complicated task would present immense transaction costs for building facilities, improving forecasting techniques, and sharing data. As a second example, consider acid rain. Technically referred to as "acid deposition," acid rain "occurs when sulfur dioxide or nitrogen oxide emissions undergo a chemical reaction in the atmosphere and become sulfuric or nitric acid." n111 Emissions in the case of sulfur dioxide first change to sulfates, fine particles that can be transported hundreds and even thousands of miles. Sulfur dioxide can return to land in dry form, becoming sulfuric acid when inhaled or moistened, or as acid rain when washed out of the atmosphere by precipitation. Researching such a complicated form of pollution is especially difficult given that the process converting pollutant emissions into acid rain occurs at high altitudes, and that "prevailing winds often carry the damaging precipitate far from the source." n112 Thus, polluting states have little incentive to study the atmospheric science behind acid rain because polluting regions are not the polluted ones. Furthermore, proponents of centralization note that in highly technical areas like energy and the environment, "although many states may benefit from better information, no state may have an incentive to provide this information on its own" n113 - and none has an incentive to research the situation in other states unless they are directly suffering from the effects of transboundary pollution. The states thus lack sufficient incentives to provide public goods, such as scientific or economic research, that would improve their decision-making capability. Even when they do, their expertise will be tailored to their unique situation and not [*425] necessarily applicable in other areas of the country. Federal information collection can better assess interstate problems, and create a unified set of indicators, making up for disparities in the funding of state environmental programs. Thus, federal regulation can reduce transaction costs related to collection of data, standard-setting, and research and development.

The principle of uniformity, often invoked as a justification for centralization, is widely recognized as desirable in various areas of law in the U.S., including the patent system. As John Duffy notes, "[t]he policy in favor of national uniformity in patent law has . . . ancient roots in the [U.S.'] law."241 A uniform patent institution offers simpler rules, enabling businesses to rely on its protections more readily. Indeed, a nationwide uniform patent system obviates the complexities that arise when navigating multiple state patent systems, and so facilitates business investment.242 Uniformity by central government legislation often creates economies of scale, allowing for the application of rules and regulations across a broader area.243 When compared to the centralized patent law in the U.S., it is easy to see that one challenge, at least in theory, facing the semi-decentralized patent system in China is that the presence of multiple province-level and city-level patent laws that local governments made can lead to inconsistencies and variations in protection, potentially creating confusion and unpredictability for inventors seeking to navigate the complex legal landscape. Inconsistency and unpredictability can increase the cost of operations244 for both administrative agencies and private businesses.245

By extending legislative power to local governments, China's central government has enabled them to establish their own patent laws, thereby creating a semi-decentralized patent system. The coexistence of national and local patent laws represents the fruits of a cooperative endeavor between the central government and local governments in structuring the patent system, where the central government takes the leading role. Local patent laws, while complementary, do not alter the requirements that the central government set forth. Rather, they modulate within the boundaries of the national law, guided by [*291] the central government's directives, and adapted to the specific local circumstances.

Furthermore, states may provide IP-like protections to material that Congress could regulate under the IP Clause, so long as these provisions are neither (i) expressly preempted by a valid act of Congress, nor (ii) in conflict with the purposes of, or the policy balance struck by, federal IP law.5 For example, before the Copyright Act of 1976, federal copyright law only applied to published works, and many states protected unpublished creative works under “common law” copyright.6 Similarly, in Goldstein v. California, the Supreme Court ruled that states may use criminal law to penalize the unauthorized pirating of sound recordings that (although they are the writings of authors) were not protected by federal copyright law.7

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The new federal law appears to leave state anti-dilution law undisturbed, with one explicit exception. It provides that ownership of a federal trademark registration “shall be a complete bar to an action against that person under the common law or statute of a State and that seeks to prevent dilution of the distinctiveness of a mark, label, or form of advertisement.76”

If no state anti-dilution claim can be brought against a federally registered mark, the clear implication is that state anti-dilution claims may still be enforced against unregistered marks. Similarly, the legislative history indicates that while the Lanham Act now protects nationally famous marks against dilution, federal law "would not pre-empt existing state dilution statutes. State laws could continue to be applied in cases involving locally famous or distinctive marks. " 77

Although several of the twenty-seven states with anti-dilution statutes had generated a considerable case law,66 dilution doctrine suffered from the usual failings of state intellectual property protection in a federal system: disuniformity and territoriality. Indeed, for more than ten years preceding the new federal statute, commentators had called for uniform federal regulation.67 In 1987 the United States Trademark Association (now the International Trademark Association, INTA) proposed a federal anti-dilution amendment as part of the 1988 trademark law revision, but the amendment was ultimately withdrawn. A similar text passed, however, in January 1996, with the support of many trademark owners. Those who testified in favor of federalizing dilution emphasized the need for uniformity, and for nationwide injunctions.68 As with the new federal right of fixation of live musical performances, the TRIPs accord may have supplied further impetus for legislative action. Article 16;3 of that agreement mandates a kind of dilution protection, more limited than that available in some states, but, of course, more extensive than that available in the twenty-three states that had no anti-dilution measures.69

Since 1978, the federal copyright law has protected all "works of authorship fixed in a tangible medium of expression ... " 45 These include sound recordings, such as authorized fixations of a musical performance on a tape or CD. The 1976 Copyright Act also protected live transmissions of performances, if the transmission was being simultaneously recorded (fixed).46 Missing from the scope of federal protection were live performances, including transmissions not undergoing simultaneous fixation. For example, a live performance in a concert or dance hall, or a radio broadcast not simultaneously recorded by the broadcaster, did not come within the subject matter of federal law.47

Many states, however, had developed protections for unfixed performances, through common law copyright, unfair competition, 48 or right of publicity49 doctrines, or by specific legislation.50 But the problems endemic to state intellectual property regimes prevailed: territoriality and disuniformity of protection. In addition, states afforded no protection against an important source of bootlegged recordings, foreign imports. For one thing, if the unauthorized fixation took place abroad, no violation of the state law would have occurred.51 Moreover, only the U.S. Customs Service had authority to block entry of foreign recordings of unauthorized fixations, but no federal law empowered the Customs Service to act. 52

Occasionally, state and federal regulatory regimes may clash. That is, even though a state may not have deliberately erected a competing regime for regulating an area controlled by national law, application of state law in a given situation may produce results inconsistent with federal policy. For example, if, in order to prevent public confusion regarding the origin of the goods, a state attempts to forbid copying an article that is itself an insufficient advance over the prior art to merit a federal patent, the state intervention would accord an exclusivity that federal law has declined to extend.16 For American lawyers the crucial question then becomes whether the federal level (or lack) of protection sets the sole measure, or whether the federal law in effect establishes a minimum standard of protection, leaving the states free · to afford more than the national legislature has chosen to accord. 17 If the former, the state law is invalid - "preempted" in the American legal jargon. If the latter, there is no federal preemption.

The foregoing example reveals an important feature of American federal-state relations: determination of whether state law has been preempted by federal law is not easy. Case law on this problem abounds in many areas, and the standard formulas employed by the Supreme Court often obscure rather than illuminate. The core idea is that of conflict, but the existence of a conflict is not self- evident. A judgment of this nature requires a precise assessment of the purposes and effects of both the federal and the state laws.18 In the intellectual property field, the extensive scope of federal regulation often does point to the conclusion that federal law should supply the sole measure of what interests are to be protected.

Federal statutes regulate patents,7 copyrights,8 and trademarks.9 Indeed, national legislation provides that only federal law may govern copyright subject matter,10 and that the federal courts alone may judge patent and copyright claims.11 In addition, the United States Supreme Court has emphasized exclusive federal authority to grant patents.12 By contrast, Congress has, in most instances, left trademarks to concurrent state and federal ordering, 13 although the national uniformity advantages of federal trademark registration and regulation are sufficiently great that congressional enactments set forth the dominant law in this realm. 14

But, more importantly, it’s not up to the states to second-guess Congress’s judgment. The policy debates over the protections and remedies accorded to copyright and patent owners typically take place at the federal level for good reason. Under the Supremacy Clause, states are powerless to enact laws that conflict with federal laws, including the Copyright and Patent Acts.

The preservation of state dilution claims may be problematic; it threatens to revive the "unpredictable" "patch-quilt" features of protection that lawmakers and trademark owners decried before enactment of the federal provision.78 Arguably, state protection will not interfere with nationwide rights, because one can expect that any nationally famous mark would be registered. Any unpredictability inherent in disuniform state regulation would, in theory, be confined to the regulation of local trade symbols. Moreover, the preemption of state dilution claims against federally registered marks may promote federal registration for all marks, especially, perhaps, for less known marks that might form the targets of state claims. Promoting federal registration enhances national uniformity and predictability in trademark law.

Finally, the federal law expression of the dilution claim adopts the "blurring" branch of dilution, but omits explicit reference to the "tarnishment" branch. The federal text, for example, unlike the state Model Bill, does not mention "injury to business reputation." Does this mean that there is no federal claim against tarnishment? And if not, do state tarnishment claims survive? It would be tempting to argue that the absence of an explicit tarnishment claim reveals Congress's intention to cut off that branch of the dilution doctrine. After all, tarnishment claims can conflict with speech interests, even if the threatened speech is often "commercial," and hence less protected. 79 Nonetheless, the legislative history suggests that Congress understood the concept of loss of distinctiveness to encompass disparagement and tarnishment.80 As a result, it would seem that, to the extent that federal dilution law can incorporate tarnishment, without running afoul of the first amendment, so, too, can state claims. By contrast, to the extent that state antidilution doctrine has not incorporated the kinds of exclusions of noncommercial speech and comparative advertising set forth in the federal statute,81 the state laws may be vulnerable to first amendment challenge. In that case, however, the new federal anti-dilution statute would not preempt the state law; rather, the state law would be set aside on constitutional grounds. Nonetheless, a comparison of the state law with the new federal law would reinforce the constitutional challenge to the state law.

For example, in the late 1980s, a U.S. firm, Qualcomm, developed the world’s most advanced technology for second-generation mobile telephony, but European firms had an advantage: a coherent pan-Continental IP strategy that included mandating technology sharing among European competitors and setting the pricing and licensing arrangements to ensure rapid adoption. The strategy of promoting its technology helped Europe win this battle and gather the spoils in growth, profitability, and employment. Qualcomm, despite its stronger technology, lost out, because the U.S. didn’t have a coherent global strategy to encourage large-scale adoption or promote acceptance of its technology.

In terms of IP policy, little has changed since then. As for why the U.S. still lacks such a strategy, that’s a matter for debate. A key factor is intense resistance in some political circles to government actions that suggest industrial policy or planning – an aversion that was confirmed during the George H.W. Bush Administration’s debates on policy toward high-definition television development and adoption. The Administration not only ignored industry calls for an integrated approach to developing technology to compete with Japanese and European inventions but also fired acting DARPA director Craig Fields, who strongly supported the industry position.

State laws can upend this balance in either direction. State laws that try to narrow exclusive rights, compared with the rights created by the federal patent system, reduce the innovation incentives by reducing the benefits created by the patent system. State consumer-protection laws that erect barriers to bringing patent claims, for instance, make it harder for patent holders to assert legitimate patent rights, reducing the value of those rights and, thus, reducing the ex ante incentive to invest in new inventions. On the other hand, state laws that try to expand exclusive rights beyond the limits of patent law impinge on the public’s right to use ideas from the public domain. But a robust public domain is one of the goals of the patent system, not some sort of loophole that must be closed, so these laws equally upset the patent system’s balance. This latter concern about narrowing the public domain has been key in several Supreme Court cases on the preemptive effect of patent law. For instance, in Sears, Roebuck & Co. v. Stiffel Co., the Court held that a state unfair-competition law could not be used against a company that sold knock-offs of a competitor’s lamp design, when the original lamp was unprotected by patent law.50 The Court explained that the patent system exists to solve an economic problem: “Patents are not given as favors, . . . but are meant to encourage invention by rewarding the inventor with the right, limited to a term of years fixed by the patent, to exclude others from the use of his invention.”51 But once that exclusivity has expired, the public’s interest takes over: “[I]n rewarding useful invention, the rights and welfare of the community must be fairly dealt with and effectually guarded. To that end the prerequisites to obtaining a patent are strictly observed, and when the patent has issued the limitations on its exercise are equally strictly enforced.”52 And since the patent laws exist to promote both new innovations and a robust public domain, states cannot interfere with the balance Congress has struck between these competing objectives. This is true regardless of the specific means employed: “Just as a State cannot encroach upon the federal patent laws directly, it cannot, under some other law, such as that forbidding unfair competition, give protection of a kind that clashes with the objectives of the federal patent laws.”53