States CP - Michigan 7 2024 BD

Neg
Notes
Welcome to the states counterplan. The 1NC solvency advocate argues that the U.S. should revert to a decentralized patent model. Other solvency advocates for the block make the argument that states already technically have this authority (hence no devolution text in the 1NC) and that the perspective shift of the counterplan solves.
The cards for the CP resolves court clog/litigation stuff = way better than I thought they would be.
The federalism net benefit is horrid and should never be your A strat, but there are indeed reasonable cards that say that the counterplan does reinvigorate federalism (as much as I do not want those to exist.) I just put it in there because you’ll need practice with those debates. I personally think the China DA that says modeling the Chinese IPR system is good because the counterplan technically has the U.S. adopt China’s system. It might be something interesting to play with. Politics and elections das are also preferable net benefits.
Shout out to Aalya, Aanya, Akhil, Cormac, Kevin, Lilli, Sarika, Smaritha, and Tara for their work on this file.
Email lucasbol@umich.edu (plus at least one other person) with questions about this file.
ALB
1NC – States CP
<Insert CP text>
States solves competition and innovation better than the plan – China proves – and only the CP reverses the destruction of cooperative federalism through the current patent system
Guan 24 [Taori; Chicago Journal of International Law; “ARTICLE: Cooperative Federalism and Patent Legislation: A Study Comparing China and the United States.”; advance-lexis-com.proxy.lib.umich.edu/api/document?collection=analytical-materials&id=urn:contentItem:6BBP-B4N1-JC8V-42D0-00000-00&context=1519360; Lowell-CS]
This Article compares the patent legislative power allocation models in China and the U.S. In terms of evolutionary paths, the U.S. transitioned from a decentralized model where patent legislative power resided with the states, to a centralized model which consolidated this power at the federal level. Within the realm of patent legislation, there is no collaboration between the federal and state governments. Conversely, China moved from a centralized model, where patent legislative power was concentrated in the central government, to a semi-decentralized model, with coexistence between the patent legislative power of the central and local governments.
This Article posits that China's semi-decentralized patent legislation model manifests key elements of cooperative federalism, embodying power sharing between central and local governments as they collaboratively address issues related to innovation. However, the nature of the cooperation between China's central and local governments is distinctive. Unlike the U.S. federal system, where states enjoy significant autonomy, China's central government assumes a dominant role, a consequence of its unitary state structure. Local governments supplement the central government's constructed system by further developing it, tailoring it to local conditions under the central government's guidance and supervision.
Compared to the current centralized patent legislation model in the U.S., this Article suggests that the intricate structure of a semi-decentralized patent legislation model might be better equipped to cater to the diverse needs of local industries and inventor communities, and to spur local competition and institutional innovation. It can do this while complying with international treaty requirements, given that national patent laws maintain a level of protection no lower than these treaties necessitate and that local patent laws do not decrease the protection level of the national laws. However, the model also faces challenges regarding potential inconsistency, rent-seeking behaviors, and local protectionism.
[*304] The examination of this semi-decentralized patent legislation model opens new avenues for understanding legislative diversity, stimulating further scholarly discourse. Beyond introducing a novel case study in intellectual property law within a particular national context, it also offers fresh perspectives on the institutional designs of federal and unitary governments in addressing innovation issues.
American federalism is modeled---it solves global wars.
Steven G. Calabresi, 95. Associate Professor, Northwestern University School of Law. B.A. 1980, J.D. 1983, Yale. "A Government of Limited and Enumerated Powers": In Defense of United States v. Lopez.” Michigan Law Review, 94.3 (1995): 752-831. JSTOR.
The bitter harvest of the nationalist revolution was gathered in this century with the slaughter of the First and Second World Wars and with the fifty-year Cold War that then followed. These events finally made clear to the great-great-grandchildren of the Enlight- enment that celebration of the nation state could lead to Nazism and Stalinism, to war and genocide, and to totalitarianism and the most complete loss of freedom humankind ever experienced. By 1945, the democratic revolution was still in full flow, but the nationalist revolution was not. World leaders scrambled to replace the still collapsing colonial, imperial transnational structures with new federal and confederal transnational structures.
The fifty years since then have seen the birth of the United Nations, the North Atlantic Treaty Organization (NATO), the European Union, the European Convention on Human Rights, the British Commonwealth, the Confederation of Independent States (CIS), the GATT, the NAFTA, and countless other transnational "federal" entities of varying degrees of importance.24 Many of these were openly inspired by the success story of American federalism, which, for example, led many Europeans to want to build a Common Market that could become a "United States of Europe." While many of these new democratic transnational entities are very weak, they nonetheless have developed important powers: they have helped to keep the peace, and in some instances, as with the European Union, they show real potential for some day attaining essentially all the attributes of sovereignty commonly associated with a federal nation-state, like the United States. The growth and success of transnational confederal forms since 1945 is truly aston- ishing and rightly is viewed by many - either with alarm or with hope - as holding out the eventual prospect of a future global fed- eral government or at least the prospect of several continental-sized federal governments.
At the same time, U.S.-style constitutional federalism has become the order of the day in an extraordinarily large number of very important countries, some of which once might have been thought of as pure nation-states. Thus, the Federal Republic of Germany, the Republic of Austria, the Russian Federation, Spain, India, and Nigeria all have decentralized power by adopting consti- tutions that are significantly more federalist than the ones they re- placed.25 Many other nations that had been influenced long ago by American federalism have chosen to retain and formalize their fed- eral structures. Thus, the federalist constitutions of Australia, Can- ada, Brazil, Argentina, and Mexico, for example, all are basically alive and well today.
As one surveys the world in 1995, American-style federalism of some kind or another is everywhere triumphant, while the forces of nationalism, although still dangerous, seem to be contained or in retreat. The few remaining highly centralized democratic nation- states like Great Britain,26 France, and Italy all face serious secessionist or devolutionary crises.27 Other highly centralized nation- states, like China, also seem ripe for a federalist, as well as a demo- cratic, change. Even many existing federal and confederal entities seem to face serious pressure to devolve power further than they have done so far: thus, Russia, Spain, Canada, and Belgium all have very serious devolutionary or secessionist movements of some kind. Indeed, secessionist pressure has been so great that some federal structures recently have collapsed under its weight, as has hap- pened in Czechoslovakia, Yugoslavia, and the former Soviet Union.
All of this still could be threatened, of course, by a resurgence of nationalism in Russia or elsewhere, but the long-term antinational- ist trend seems fairly secure. There is no serious intellectual sup- port for nationalism anywhere in the world today, whereas everywhere people seem interested in exploring new transnational and devolutionary federal forms.28 The democratic revolution that was launched in Philadelphia in 1776 has won, and now it seems that democrats everywhere join Madison in "cherishing the spirit and supporting the character of federalists."29
Solvency
2NC Follow On
States have authority for IP interventions – also leads to follow on
Ginsburg 96 [Jane C. Ginsburg is a professor at Columbia Law School; “U. S. Federalism and Intellectual Property”; 1996; https://scholarship.law.columbia.edu/faculty_scholarship/3578/]//aanya
Madison's point would seem equally applicable to other varieties of intellectual property. Indeed, today, most commentators would acknowledge the national government's authority to regulate all forms of intellectual property by virtue of the constitutional grant to Congress of the power "to regulate Commerce ... among the several States. " 5 But the existence of authority is one thing, its exercise quite another. Here the historical dynamics of American federalism are important. The vast domain of federal power has not been fully occupied, and accordingly, outside the realm of patent and copyright, the states do play a role in the regulation of intellectual property. Moreover, state-based protections have occasionally penetrated even these core federal areas. There are various reasons for continued state intervention in at least certain intellectual property areas. Some stem from the states' established role in governing property rights and relations in general. Another, which forms one focus of this paper, derives from the U.S. tradition of looking to the states as "laboratories" for the development of the law and social policy. 6 According to this tradition, state courts and legislatures experiment locally with evolving rights and modes of regulation. Subsequently, the local experience may form the basis for adoption of the same or similar laws by other states, and perhaps ultimately by the national legislature.
Follow on happens and is superior to the plan
Nguyen 10 (XUAN-THAO NGUYEN, Indiana University Gerald L. Bepko Chair in Law & Director Center for IP & Innovation, “Dynamic Federalism and Patent Law Reform” 2010, https://ilj.law.indiana.edu/articles/85/85_2_Nguyen.pdf, LF)
The successful local patent-law-reform movement highlights the role of localities as laboratories and agents for change that impacts both local and national levels. The successful results from judges and local bar associations working together to control patent litigation, curb tactical abuses, reduce costs, deliver swift justice, and enhance judicial expertise in patent cases demonstrates why true patent reformers should recognize the positive steps taken by the local level forge a major national overhaul of the patent system. Reform at the local level is even more important given that Congress has not been able to revamp the patent system in the last couple of years, and the Supreme Court is unpredictable in its injection into patent reform. Local patent reform is an example of dynamic federalism at work.
A2 Preemption/Uniformity Deficits
The Counterplan ensures innovation by allowing greater stakeholder participation preventing corruption and ensuring corporate lobbying does not dominate cases
Guan 24 [Taori; Chicago Journal of International Law; “ARTICLE: Cooperative Federalism and Patent Legislation: A Study Comparing China and the United States.”; advance-lexis-com.proxy.lib.umich.edu/api/document?collection=analytical-materials&id=urn:contentItem:6BBP-B4N1-JC8V-42D0-00000-00&context=1519360; Lowell-CS]
The third limitation is that legal reforms through the court system can lead to insufficient participation from stakeholders. Local stakeholders, especially those who have not instigated these cases, have limited opportunities to influence judicial interpretation directly. This is because courts base their decisions primarily on the legal arguments that the parties involved in the litigation present. Conversely, stakeholders can offer direct input that helps to shape local legislation, ensuring that patent laws reflect their priorities and needs. Some critics argue that the Federal Circuit's patent jurisprudence has become isolated and disconnected from the technological communities it affects.236 Comparatively, when local governments have legislative authority, as is the case in China, local citizens can also advocate for legal reforms that are tailored to their specific needs by influencing local legislation through public consultations,237 expressing views to representatives,238 and collaborating with NGOs.239 This approach allows for more informed legislation. Moreover, Article 87 of the Legislative Law of China requires local legislators to make drafts public and to solicit the public's opinions.240 Stakeholders can also influence legislation by providing comments.
No preemption and the aff doesn’t solve uniformity
Hrdy’17 [Camilla A. Hrdy is a Intellectual Property Law professor at George Mason University and an Affiliated Fellow at the Yale law School Information Society Project, January 10 2017, “IP and Federalism: An Expanding Field”, Written Description, https://writtendescription.blogspot.com/2017/01/ip-and-federalism-expanding-field.html, TP ]
Sharon closed out the panel by discussing her new paper on federalization of IP laws, and the "myth" that federalization increases uniformity of law. Sharon began by raising the following possibility: while it is tempting to propose federalization in any case where state-by-state disuniformity becomes unworkable, the notion of federalization as a panacea to disuniformity may be wishful thinking.
Sharon's project flags five basic, fundamental impediments to uniformity in a given federalized IP regime, and one complicated, but arguably more marginal impediment. I discuss each below.
(1) Non-Preemption and Substantive Divisions in the Law
The first problem is that, as alluded to above, Congress does not really ever preempt state law when it creates a federal IP regime. (See note on Guy's project, and think about all that litigation surrounding ERISA.) This means we get cases like Goldstein upholding a state sound recording right pre-1976 Act, or copyright law being used to remove subject matter from the public domain that would not qualify for federal copyright. Regardless of whether we think such state-driven expansions of federal IP are a good or a bad thing, they cut against the notion of "uniformity" even in the substance of the IP rights themselves. Divisions in substantive law could lead to uncertainty as to what the law actually is and competing state and federal rights. We might say: why would anyone choose a state IP right versus a federal IP right? For patent law, generally speaking a national scope would be preferred over a state-level right. But this is not necessarily the case because absent clear preemption, states can expand IP rights beyond what Congress provides (see note on Guy's and Jennifer's projects above).
(2) Jurisdictional Competition
Second, in trademark, and now in trade secret, state and federal courts have concurrent jurisdiction. Concurrent jurisdiction means diversity of law in several respects: different procedural rules, different case outcomes among federal and state judges, and the possibility for differential interpretations of law (see note on Erie below). We may think this sort of "jurisdictional competition" is positive. Paul Gugliuzza, for example, has provocatively challenged federal courts' exclusive jurisdiction in patent law vis a vis state courts. But the fact remains that concurrent jurisdiction isn't particularly conducive to uniformity of law.
(3) Circuit Splits
Third, in copyright, trademark, and now trade secret, issues on appeal go up through the regional circuit courts rather than a singular Federal Circuit. The possibilities for circuit splits abound.
(4) Disagreement at the Federal Circuit (or its hypothetical equivalent)
Fourth, even in patent law, where we'd assume the Federal Circuit would give us clear, uniform rules, many academics contend this just isn't happening. The Federal Circuit judges cannot seem to reach agreement on key issues like claim construction and patentable subject matter. This leads to disuniformity among panel decisions and changes in the rules from one year to the next. (Others contend the opposite, saying the Federal Circuit should be joined by regional circuits to liven up patent doctrine and escape an "isolated and sterile jurisprudence". Ryan Vacca's review chapter comprehensively discusses the wide range of research and views on this issue.)
(5) Slap-Downs from the Supreme Court
Lastly, even when there is a singular appellate court hearing all appeals in a particular IP field, and the judges on that appellate court tend to agree on clear and uniform rules...their decisions may still get overruled by a dissatisfied Supreme Court. This may not lead to disuniformity per se. The Supreme Court announces the IP law of the land. But it does lead to significant "temporal disuniformity", as the rule today is not necessarily the rule tomorrow.
In any case, Sharon's basic point is well-taken: even assuming (express or implied) preemption, even assuming exclusive federal jurisdiction, and even assuming a single harmonious circuit court to handle all appeals, federalization does not necessarily mean complete uniformity.
No preemption
Lamb 15’ (Brittany, Columbia Law Review “The Federal Government’s Hand-Me-Downs: The Possibility of Protecting Fashion at the State Level” https://www.jstor.org/stable/43153768 AS)
A state law may also avoid preemption if it addresses "activities violat- ing legal or equitable rights that are not equivalent to any of the exclu- sive rights within the general scope of copyright as specified by section 106."49 Under section 106, the owner of a copyright is guaranteed five exclusive rights: reproduction, preparation of derivative works (or adap- tation), distribution, performance, and display.50 A state law reaching copyrightable subject matter would be preempted if it provided any of these five rights, or their equivalents. The exclusive right that seems most relevant to the fashion industry is the right "to reproduce the copyrighted work in copies."51 The copy- righted work is infringed if the work is reproduced "in whole or in any substantial part, and by duplicating it exactly or by imitation or simu- lation."52 If a garment managed to acquire copyright protection, it would be direcdy protected from knockoffs by the right of reproduction. Therefore, if garments qualified as copyrightable subject matter, a state statute extending a right to designers equivalent to federal copyright's right of reproduction would be preempted
A state law will be preempted only if it addresses subject matter that falls within the scope of federal copyright and extends a right compa- rable to those provided by federal copyright.53 Part II.A discusses the first prong of the preemption test as it relates to garment designs - namely, whether garments qualify as copyrightable subject matter. Part II.B then discusses whether a state law that protects garment designs would provide a right resembling one of those provided by federal copyright. A. The Subject-Matter Requirement
Section 301 preempts state laws that address works that "come within the subject matter of copyright."54 Conversely, subject matter that does not fall under the umbrella of copyright

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