Court Clog DA - Michigan 2024 STARTER

Court Clog Disadvantage – UMich Starter Packet – Lee
Notes:
This file is pretty simple and straightforward.
Argument is the plan will clog the court system and that overwhelms the courts and prevents them from accomplishing x. You can choose which impact scenario you want. The warming and patent scenarios are good. You definitely can read the patent scenario as an independent turns case argument against patent AFFs.
When creating the 1NC, make sure to insert a link to for each module. Do NOT read two modules in the same 1NC otherwise you thumped yourself.
There are AFF answers at the bottom of the file. AFF’s best arguments are definitely “no internal link” AND “courts are pretty clogged up”. AFF files will probably have specific link turns that can be pretty fun to do on this topic. Hope we all brushed up on our straight-turning skills given last year’s topic was pretty good for it.
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Jake Lee
Mamaroneck High School
Top Level
1NC—Impact Module—Warming
[Insert Link]
Docket overload prevents efficient resolution of climate litigation—that decks enforcement of climate policies to reduce climate change
Cinnamon Piñon Carlarne 21, 19th President and Dean of Albany Law School, was the Associate Dean for Faculty & Intellectual Life at The Ohio State University Moritz College of Law, leading international expert in environmental and climate change law policy with a deep commitment to environmental equity and social justice, “The Essential Role of Climate Litigation and the Courts in Averting Climate Crisis”, Ohio State Legal Studies Research Paper No. 592, SSRN, 2021
The history of judicial leadership on matters of critical social importance on which the political branches have stumbled is long and layered in social and liberal democracies worldwide. From the US Supreme Court’s decisions to desegregate schools and advance individual freedoms and privacy rights, to India’s Supreme Court’s string of decisions advancing protections for privacy, gender, and sexuality-related rights,3 to the expansive suite of decisions of the European Court of Human Rights on topics ranging from domestic slavery to environmental justice,4 to the ongoing role of courts in recognizing a right to a healthy environment5 and emerging rights for nature,6 the judiciary plays an essential role in advancing the rule of law on climate change.
More specifically, climate litigation7 draws on a long history of environmental litigation. From the earliest days, litigants turned to the courts to ensure the implementation, enforcement, and evolution of environmental law. Courts have served as the guardians and, at times, the architects of the rule of law in the environmental context in jurisdictions as varied as the United States, South Africa, and India.8
The role that the courts have and continue to play in shaping environmental law reflects a long history of adversarial legalism9 and an abiding faith in the ability of the courts to be unbiased arbiters of legal disputes as well as visionaries of change.
Climate litigation is thus neither an aberration nor a new phenomenon. The expanding body of climate litigation responds to profound state failures to protect their citizenry from the dire threats that climate change poses. Moreover, it tracks a history of citizens turning to the courts to identify and enforce fundamental rights when the political branches fail to do so, and reaffirms the long-standing role and responsibility of the judiciary in maintaining the integrity of the rule of law and ensuring the wellbeing of the nation and its people, particularly in moments when the state fails to respond to urgent social, scientific, and political challenges.10 Building on a long history of effective environmental litigation, climate litigation is playing and incontrovertibly important role in shaping the rule of the law around climate change.
Warming causes extinction.
Ng ’19 [Yew-Kwang; May 2019; Professor of Economics at Nanyang Technology University, Fellow of the Academy of Social Sciences in Australia and Member of the Advisory Board at the Global Priorities Institute at Oxford University, Ph.D. in Economics from Sydney University; Global Policy, “Keynote: Global Extinction and Animal Welfare: Two Priorities for Effective Altruism,” vol. 10, no. 2, p. 258-266]
Catastrophic climate change
Though by no means certain, CCC causing global extinction is possible due to interrelated factors of non‐linearity, cascading effects, positive feedbacks, multiplicative factors, critical thresholds and tipping points (e.g. Barnosky and Hadly, 2016; Belaia et al., 2017; Buldyrev et al., 2010; Grainger, 2017; Hansen and Sato, 2012; IPCC 2014; Kareiva and Carranza, 2018; Osmond and Klausmeier, 2017; Rothman, 2017; Schuur et al., 2015; Sims and Finnoff, 2016; Van Aalst, 2006).7
A possibly imminent tipping point could be in the form of ‘an abrupt ice sheet collapse [that] could cause a rapid sea level rise’ (Baum et al., 2011, p. 399). There are many avenues for positive feedback in global warming, including:
the replacement of an ice sea by a liquid ocean surface from melting reduces the reflection and increases the absorption of sunlight, leading to faster warming;
the drying of forests from warming increases forest fires and the release of more carbon; and
higher ocean temperatures may lead to the release of methane trapped under the ocean floor, producing runaway global warming.
Though there are also avenues for negative feedback, the scientific consensus is for an overall net positive feedback (Roe and Baker, 2007). Thus, the Global Challenges Foundation (2017, p. 25) concludes, ‘The world is currently completely unprepared to envisage, and even less deal with, the consequences of CCC’.
The threat of sea‐level rising from global warming is well known, but there are also other likely and more imminent threats to the survivability of mankind and other living things. For example, Sherwood and Huber (2010) emphasize the adaptability limit to climate change due to heat stress from high environmental wet‐bulb temperature. They show that ‘even modest global warming could … expose large fractions of the [world] population to unprecedented heat stress’ p. 9552 and that with substantial global warming, ‘the area of land rendered uninhabitable by heat stress would dwarf that affected by rising sea level’ p. 9555, making extinction much more likely and the relatively moderate damages estimated by most integrated assessment models unreliably low.
1NC—Impact Module—Patent
[Insert Link]
That causes massive delays in the patent system—results in uncertainty decking innovation
Warren K. Mabey, Jr. 11, current Principal at Fish & Richardson P.C., JD, 2011, Rutgers University School of Law – Camden, BS, 2004, electrical engineering from Bucknell University, former law clerk for the Honorable Joseph H. Rodriguez in the U.S. District Court for the District of New Jersey, “Deconstructing the patent application backlog”, Journal of the Patent and Trademark Office Society, 92(2), 208-282, HeinOnline, 2011
Increased grant delays are only particularly harmful in certain industries." High technology industries, characterized by numerous overlapping rights, such as the computer and biotechnology industries, are especially sensitive to uncertainty in the scope of intellectual property rights that emanates from prolonged pendency." Boundary rights must be defined early in these industries to optimize certainty. In addition, short product life-cycles define many high tech industries."' Thus, timely patent grants are necessary to reap the maximum commercial rewards from the patent right."' The desirability of securing early patent rights in these industries is demonstrated by the fact that applicants in these fields are three times more likely to pursue more immediate continuation practice through requests for continuing examination, rather than delaying prosecution through traditional continuation applications." The evidence demonstrates that applicants in high technology fields benefit from shorter grant lags.
The size of an entity is also extremely important when considering how the backlog will impact its innovation potential. Patent protection is only one of many factors that influence innovation.308 For large firms in high technology fields, the ability to enforce patent rights is not the most important means of protecting R&D investments.309 Small firms, however, rely more heavily on this exclusionary right.310 They are likely to realize less value from uncertain patent protection.311 Therefore, many small inventors and companies argue that they are disproportionately hurt by the backlog. Would-be small firm applicants may forgo R&D efforts if the expected protection of the patent is illusory. 312 Innovators who perceive a decreased value in patent protection may also seek out other means of protecting their intellectual property, such as trade secrets, which deprives society of the important notice function of patents.313
Efficient court review underpins patent-led innovation—that stops nuclear war and a range of existential threats AND turns solvency of the AFF
Robert J. Rando 16, Founder and Lead Counsel of The Rando Law Firm P.C., Fellow of the Academy of Court-Appointed Masters, Treasurer for the New York Intellectual Property Law Association, Chair of the Federal Bar Association Intellectual Property Law Section, “America’s Need For Strong, Stable and Sound Intellectual Property Protection and Policies: Why It Really Matters”, IP Insight, June 2016, p. 12-14 [language modified] [abbreviations in brackets]
Robert F. Kennedy’s speech, which includes his reference to the oft-quoted “interesting times” curse, applies throughout history in many contexts and, indeed, with both negative and positive connotation. While he focused on the struggles for freedom and social justice, the requisite ascendancy of the individual over the state, and the institution and integration of those ideals for the greater good, he also promoted the goals of greater global unity, cooperation and communication, which were, and could be, achieved by advances in technology. And, as noted in the excerpt, he championed “the creative energy of men.” Intellectual Property in “Interesting Times” It is beyond question that starting with the last decade of the twentieth century and throughout the first two decades of the twenty-first century, when it comes to matters relating to intellectual property, we have been living in “interesting times.” Some may interpret these interesting times as defined by the curse and others may view it by the ordinary meaning of “interesting.” In either case, those of us that toil in the fields of patents, copyrights, trademarks, trade secrets, and privacy rights have experienced an unprecedented sea change in the way those rights are procured, protected and enforced. Likewise, and perhaps more importantly, even those of us that do not practice in these areas of law, as well as the general public, have been, and continue to be, impacted by the consequences of these changes (both positive and negative). The Changes In Intellectual Property Law Examples of some of the changes in intellectual property law are: the sweeping 2011 legislative changes to the patent laws under the America Invents Act (AIA), which impact is only beginning to be fully appreciated; the various proposals for patent law reform, on the heels of the AIA, beginning with the 113th and 114th Congress; the copyright laws Digital Millennium Copyright Act (DMCA) and numerous 114th Congressional proposed copyright law changes; the recently enacted federal trade secret law (Defend Trade Secrets Act of 2016 (DTSA))2; the impact of the internet, domain names and globalization on Trademark law; the intellectual property law harmonization requirements included in various global/regional trade agreements; and the proliferation of devices (both invasive and non-invasive) that defy any rational basis for believing we can still adhere to the republic’s libertarian understanding of the right to privacy. Without engaging in “chicken and egg” analysis, it is sufficient to observe that technological advancement, societal needs, globalization, existential threats, economic realities, and political imperatives (or what James Madison referred to in the Federalist Papers No. 10 as factious governance), have combined to create the “interesting times” for the United States [IP] intellectual property laws. What was said by Bobby Kennedy in 1966 remains true today. We live in dangerous and uncertain times. Many of the existential threats remain the same (nuclear war and proliferation, [genocides] genocidal maniacs and natural disease) and some are new ([hu]manmade disease, greater awareness of environmental changes and possibly human interrelationship factors, and the unintended consequences of genetic manipulation and robotic technologies). The danger and uncertainty that pervades changes in intellectual property laws, though not an existential threat of the same manner and kind, correlates with the threat and remains “more open to the creative energy of man than any other time in history.” Apropos the creative energy of man, there is a non-coincidental congruence and convergence of activity across and among the three branches of government, occurring almost simultaneously with the congruence and convergence of the rapid developments of technological innovation across various scientific disciplines and the information age, reflected in the transformation of the [IP] intellectual property laws in the United States. Patents The passage of the AIA was a culmination of efforts spanning several years of Congressional efforts; and the product of a push by the companies at the forefront of the twenty-first century new technology business titans. The legislation brought about monumental changes in the patent law in the way that patents are procured (first inventor to file instead of first to invent) and how they are enforced (quasi-judicial challenges to patent validity through inter-party reviews at the Patent Trial and Appeals Board (PTAB)). The 113th and 114th Congress grappled with newly proposed patent law reforms that, if enacted, may present additional tectonic shifts in the patent law. Major provisions of the proposals include: fee-shifting measures (requiring loser pays legal fees - counter to the American rule); strict detailed pleadings requirements, promulgated without the traditional Rules Enabling Act procedure, that exceed those of the Twombly/Iqbal standard applied to all other civil matters in federal courts, and the different standards applicable to patent claim interpretation in PTAB proceedings and district court litigation concerning patent validity. The Executive and administrative branch has also been active in the patent law arena. President Obama was a strong supporter of the AIA3 and in his 2014 State Of The Union Address, essentially stated that, with respect to the proposed patent law reforms aimed at patent troll issues, we must innovate rather than litigate.4 Additionally, the USPTO has embarked upon an energetic overhaul of its operations in terms of patent quality and PTO performance in granting patents, and the PTAB has expanded to almost 250 Administrative Law Judges in concert with the AIA post-grant proceedings’ strict timetable requirements. The Supreme Court, not to be outdone by the Articles I and II branches of the U.S. government, has raised the profile of patent cases to historical heights. From 1996 to the 2014-15 term there has been a steady increase in the number of patent cases decided by the SCOTUS5. The 2014-15 term occupied almost ten percent of the Court’s docket. Prior to the last two decades, the Supreme Court would rarely include more than one or two patent cases in a docket that was much larger than those we have become accustomed to from the Roberts’ Court6. While the SCOTUS activity in patent cases is viewed by some as a counter-balance to the perceived Federal Circuit’s pro-patent and bright line decisions, it can just as assuredly be viewed as decisions rendered by a Court of final resort which does not function in a vacuum devoid of the social, economic and political winds of the times. In recognition of the effect new technologies have on the patent law, the politicization of intellectual property law matters, especially patent law (through factious governing principles of the political branches of the government), and the maturation of the Federal Circuit patent law jurisprudence, the SCOTUS has rendered opinions in cases that impact, and perhaps are/were intended to mitigate the concerns regarding, some of the vexing issues confronting the patent community today (e.g., non-practicing entities or in the politicized parlance “patent trolls,” the intersection of patent and antitrust laws in Hatch-Waxman so called “pay-for-delay” settlements between Branded and Generic pharma companies, and the fundamental tenets that comprise the very heart of what is patent eligible subject matter). Copyrights The advent and ubiquity of the internet, social media and digital technologies (MP3s, Napster, Facebook, YouTube, and Twitter) represents the impetus for changes in the Copyright laws. The DMCA addressed the issues presented by these advances or changes in the differing media and forms of artistic impressions. The proliferation of digital photos, graphic designs and publishing alternatives, as well as adherence to globalization harmonization have given rise to changes in the statutory law and jurisprudence in this area of intellectual property law. Additionally, there is an overlap of patent rights and copyrights for software driven by the ebb and flow of the strength of each respective intellectual property protection. Notably, the Patent and Copyright Clause7, in addition to Author’s writings, has been viewed as discretely applying to two different types of creativity or innovation. When drafted the “sciences” referred not only to fields of modern scienctific inquiry but rather to all knowledge. And the “useful arts” does not refer to artistic endeavors, but rather to the work of artisans or people skilled in a manufacturing craft. Rather than result in ambiguity or confusion, perhaps the Framers were either quite prescient or, just coincidentally, these aspects of the Patent and Copyright Clause have converged. For example, none other than the famous Crooner, Bing Crosby, benefited from both protections. Well-known as a prolific and popular recording artist he also benefited from his investments in the, then innovative, recording technologies. Similarly, the Beatles, Beach Boys, as well as many other rock and roll artists, experimental efforts in music performance, recording and production, helped to transform the music industry in both copyrightable artistic expression and patentable inventions. Similarly, film, literary and digital arts reap benefits at the crossroads of both copyright and patent protections. Trademarks Trademark laws have been impacted by numerous changes in the business landscape. They include the internet, Domain names, international rights in a global economy, different venues and avenues for branding, marketing and merchandising, global knock-offs from nations that have a less than stellar respect for intellectual property rights, and international trade agreements. More recently, politicization (or perhaps political correctness) has creeped into the trademark law arena pitting branding rights and protections against first amendment rights. Trade Secrets As with Copyright and Trademark law, trade secrets law includes some of the same issues related to trade agreements. TRIPS required members to have trade secret protection in place. Initially, the United States compliance with this requirement has relied upon the trade secret law of the individual states. That compliance may be supplan

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