K Affs Neg 2 - Michigan 7 2024 CFMP

K Aff Case Neg 2—CCFMP 2024
Thanks to Bert Cai, Ava Moon, and Maryclare Nestor for your work!
Case—Generic/All-Purpose
Debating IP/Switch-Side/Topicality Good—1NC
Switching sides when researching and debating IP law—and establishing common concepts and focal meanings through topicality—doesn’t make us endorse hegemonic structures, it teaches us how to resist them.
MacLeod, 23—Professor of Law, Faulkner University, Thomas Goode Jones School of Law (Adam, “Vested Patents and Equal Justice,” Catholic University Law Review
72, no. 3 (Summer 2023): 359-414, dml)
This rejection of property concepts is subject to the same counter-critique as skepticism of legal concepts in general. Just like trespass and rights, entitlements are themselves conceptual, as are the ends that efficient rules are supposed to serve. To assert that utilitarian concepts fit IP better than property concepts is to assume that those features which are most essential or important to IP law are reflected in utilitarian concepts, and those which are reflected in property concepts are peripheral or irrelevant. It is, in other words, to assume a judgment about what is most essential--or even exclusively essential--to IP.
But now it might seem that we are drawing up sides. Isn't this all very judgmental? In a sense it is. To describe any human artifact accurately requires judgments of fit and importance. And insofar as human beings design and use artifacts such as law to achieve certain ends (and not others), good descriptive scholarship must account for the features of the artifact under consideration which result from those moral judgments. But we require both external and internal judgments. So, our judgments need not devolve into theoretical rivalry.
Conceptual scholarship both is and is not inherently normative in the same sense that all good scholarship both is and is not inherently normative. It is inherently normative, as John Finnis has explained, "in so far as there is no escaping the theoretical requirement of a judgment of significance and importance if theory is to be more than a vast rubbish heap of miscellaneous facts described in a multitude of incommensurable terminologies."144 Assessments of significance and importance are grounded in a practical perspective on human actions and affairs. Scholars of law are engaged in academic inquiry-what classically has been known as theoretical reasoning, inquiry for the sake of knowing what is true-about the practicalreasoning of people who act for legal reasons. To perform good descriptive work about the normative activities of human beings requires some understanding of those normative activities from the inside. We must perceive from the practical perspective of those who act for legal reasons. Yet we must also critically evaluate those reasons, and so must abstract from the practical perspective to an external point of view.
Good scholarship about the concepts employed in patent law, like good scholarship about human acts and artifacts generally, 145 does both. It carries on a "movement to and fro" between, on one hand, attention to the ends or values or goods which people act to attain and "on the other hand, explanatory descriptions (using all appropriate historical, experimental, and statistical techniques to trace all relevant causal interrelationships) of the human context" in which law operates. 146 Each perspective must adjust according to the insights of the other. This is one reason why H.L.A. Hart argued more than half a century ago that scholarship about law must attend both to the external perspective of sciences such as economics and the internal point of view of those who act for legal reasons. 147
So, when Lon Fuller set out to identify the "forms and limits" of adjudication, he took care to identify the "true" and essential forms, and to distinguish those from false and defective forms, all by reference to the goals and ideals toward which adjudication is directed.148 He was on the hunt for a "rational core." 149 Recognizing that academics are "allergic" to words such as truth and essence, he nevertheless insisted that judgments of truth and essence are indispensable. "For if there is no such thing as 'true adjudication,' then it becomes impossible to distinguish the uses and abuses of adjudication." 150 The scholar must distinguish uses from abuses because law and lawyers do, and the scholar's job is to account for and explain the coherence of law and legal practice. To deny that adjudication has any essential features is to suggest that lawyers are "talking nonsense" when they discuss which disputes are fitted to which tribunals and which procedures. 151 Fuller asked rhetorically, "[d]o those engaged in discussions of this sort deceive themselves in believing that they are engaged in rational inquiry?"15 2
Fuller respected the internal point of view of lawyers enough to explain the coherence of their deliberations and choices. That does not mean that the good scholar accepts uncritically everything that presents as adjudication, for humans are limited in their knowledge and capacities and, even when they act with the best of intentions (which does not always happen), they fail to live up to their own ideals. As a result, they build and maintain imperfect artifacts full of "tosh--that is, superfluous rituals, rules of procedure without clear purposes, needless precautions preserved through habit."15 3 Fuller explained, "[o]ur task is to separate the tosh from the essential." 154
If we will not inquire into the essence of things, then what is the alternative? If we suppose that nothing is essential, and that all concepts are constructs of raw power, then how are we to reason about the real practical reasoning that people actually do? People act; that is given. We are acting beings. The only alternatives are to act according to reason or simply to assert subjective experience against subjective experience, to be trammeled in what Hanoch Dagan calls the "trap of helpless relativism that, paradoxically, ends up reaffirming the status quo." 155
By contrast, reasoning by reference to central cases and focal meanings enables us to understand the important work that legal concepts do for people in the real world, while also understanding and allowing for peripheral and defective instances. The device of central case and focal meaning enables us to understand normative successes and failures; legal justice and legal injustice. It also enables us to classify legal concepts.
IP Law Good—1NC
IP law safeguards the autonomy and capabilities of marginalized communities and facilitates societal well-being—internal safety valves and public domains check abuses.
Mendis, 24—Assistant Professor in Intellectual Property Law at the Tilburg Institute for Law, Technology, and Society of the Tilburg University (Sunimal, “Re-thinking intellectual property law’s promise of democratic inclusion,” Research Handbook on Intellectual Property Rights and Inclusivity, Chapter 1, pp. 20-22, dml)
The capability-enhancing function of IP law refers to its potential to advance human-capabilities as envisioned in the capability approach to justice developed by Sen and Nussbaum. The capability approach advocates that, a just State must secure central human capabilities to a threshold level with the aim of facilitating ‘human flourishing’ and has been employed by scholars such as Chon 35 and Sunder36 as a conceptual framework in developing democratic theories of IP law (particularly focusing on copyright). These democratic theories elaborate the link between IP law and the promotion of human capabilities, highlight the limitations of the narrow-utilitarian-based conceptualization of IP law and advocate for a broader distributional-justice based approach that is aimed at facilitating human-development.
The concept of capabilities is vaguely defined but is described in relation to ‘functionings’. Functionings are “the various things a person may value doing or being”37 and capability refers to various combinations of functionings that are feasible for an individual to achieve. 38 Thus, capability can be understood as the substantive freedom 39 or autonomy of a group or entity to achieve functioning combinations based on their individual and collective values and preferences. Nussbaum presents an open-ended list of capabilities40 which includes: (a) the ability to use the senses; to imagine, think, and reason and to use one’s mind in ways protected by guarantees of freedom of expression (b) ability to participate effectively in political choices that govern one’s life (i.e. the right of political participation, protections of free speech and association), (c) the ability to laugh, play and enjoy recreational activities, (d) the ability to have good health. Thus, these capabilities correspond to fundamental rights and freedoms41 as guaranteed by the EU Charter of Fundamental Rights (CFR)42 and securing them will advance democratic inclusion in society by promoting equality and self-determination and diversity.
The production function of IP law enhances public accessibility of intellectual goods by bringing the innovation process within the market-mechanism. The promotion of human capabilities requires a legal and regulatory infrastructure that can ensure equitable access to and enjoyment of those goods by all members of society: not merely for passive consumption (e.g., watching a film, obtaining medication) but to actively engage with these goods in ways to enable members of the public to assert their status as equal participants in the cultural, political and economic aspects of society. Thus, active engagement with intellectual goods is critical for citizens to participate in the democratic process in a meaningful way. This entails for example, the ability to respond and react to literary, artistic, and scientific content through commentary, critique, or homage 43 and the ability to adjust and develop existing innovations for the purpose of optimizing their utility to oneself and/or to society. This gains evens more significance within the digital environment which facilitates participatory forms of collaborative creation, typically involving the re-use and re-interpretation of copyright protected content (e.g., user-generated content (UGC) such as memes, GIFs on online social media platforms).
As noted in Section 1 above, IP law contains inbuilt structural limitations or ‘internal safety-valves’, which contribute towards achieving these aims by (a) nourishing a vibrant public domain; (b) facilitating uses of IP protected content which are crucial for securing human capabilities during the term of protection through E&L.
As per democratic theories of IP law, nourishing a vibrant intellectual goods public domain is not merely an unintended by-product of IP law but rather its key objective.44 By constructing and sustaining a reservoir of information in which no person or entity may exercise exclusive rights, IP law provides the public with a playground for experimentation and innovation which plays a crucial role in enhancing human capabilities.45 IP law nourishes the public domain through the limited duration of exclusive rights (particularly the limited duration of copyright and patent law) and by calibrating criteria for IP rights protection in a way that safeguards the public domain from undue encroachment by exclusive IP rights. The idea-expression dichotomy in copyright law, the exclusion of mathematical methods or scientific theories from patentability and the criteria of distinctiveness and non-generic nature in trademark law prevent IP rights from being used to claim exclusive property rights in fundamental raw materials (e.g., ideas, principles) that can form essential building-blocks for innovation.
During the period of protection, E&L to IP rights 46 ensure that intellectual goods are available for consumption in ways that promote human capabilities. For instance, copyright exceptions for quotation, commentary and parody play a vital role in safeguarding users’ freedom of expression and the arts. 47 In addition, as evidenced by the Google Books decision 48 in the US (in relation to the quotation of copyright protected content), they enable imaginative transformative uses of existing intellectual goods in ways that optimize their social (e.g., development of new useful products) and economic benefits (e.g., development of new business models for commercially exploiting said products).
Outweighs on scale and scope.
Menell, 16—Koret Professor of Law and Director, Berkeley Center for Law & Technology, University of California at Berkeley School of Law (Peter, “Property, Intellectual Property, and Social Justice: Mapping the Next Frontier,” Brigham-Kanner Property Rights Conference Journal 5 (2016): 147-196, dml)
There is little question that shoring up of IP rights and trade liberalization affects human and cultural rights, economic inequality, labor conditions, environmental protection, and a host of other critical issues. The issues range from providing life-saving drugs to the poorest people in the world to addressing environmental degradation, protecting the global environment, combating unsafe working conditions, and eradicating abusive child labor practices. As with the interplay of IP and inequality more generally, the policy matrix is replete with paradoxes and inherent conflicts. Innovation and expressive creativity promise to help developing nations to address the often dire plight of their citizens. Yet this vision conflicts with various non-utilitarian perspectives as well as the distorting influences of corporate interests and geopolitics.
CONCLUSION
Professor Singer's scholarship emphasizes the need to view property and property institutions through a broader lens that integrates social justice dimensions. Given the growing importance of intangible resources in the economic, the social, and the political spheres, intellectual property scholars must widen our lens as well. Several IP scholars have pointed the way.20 ' This Article has sought to sketch a more capacious framework. Within each mode of intellectual property protection, we need to use a bi-focal lens. In addition to the conventional issues involved in assessing the internal validity of intellectual property regimes (for example, does patent law, trade secret law, and copyright promote progress as judged by the conventional utilitarian lens? Does trademark law effectively safeguard the integrity of the consumer marketplace?), scholars must also explore the broader range of social justice concerns bearing on the particular intellectual property modality: human rights, moral rights, cultural and group interests, indigenous people's rights, distributive concerns, and other externalities, such as environmental degradation and climate change.
Beyond this dual mode-specific focus, intellectual property has important ramifications for larger questions of income, wealth, power, race, and gender inequality as well as global justice. Any legal and policy regime that concentrates economic power and wealth to the extent that intellectual property protection does has far-reaching effects on economic and social justice. The technology and culture industries, grounded in intellectual property, are especially important in driving economic growth, providing telecommunication infrastructure and filling the airwaves, influencing the functioning of political institutions, educating future generations, and addressing public health, food supply, and climate-change challenges on a global scale.
Rights/Property Good—1NC
Legal frames of rights, property, and intellectual property rights are empowering.
MacLeod, 23—Professor of Law, Faulkner University, Thomas Goode Jones School of Law (Adam, “Vested Patents and Equal Justice,” Catholic University Law Review
72, no. 3 (Summer 2023): 359-414, dml)
Vested rights have served other minority groups, as well. The concept of vested, natural rights was used in legal arguments for the abolition of both slavery and coverture. 283 It also secured the property rights of Mexicans and those claiming by grant of the Mexican government against an attempt by a legislature to divest them of title. 284 The concept of vested patents, specifically, has been used to protect the vested titles of Native peoples and other minorities against attempts to divest them of land use rights and immunities from taxation. 285 In Canadian law, Native groups enjoy particularly strong vested rights. For example, vested customary rights to hunt on tribal land are immunized against abrogation by public hunting laws. 28 6
Had vested rights doctrine not been lost to legal scholars in the twentieth century they might have continued this work. Consider the opposition of vested property rights to racial segregation and other forms of majoritarian tyranny, and the extent to which racially discriminatory practices have needed to overcome vested private rights. One simple example is that zoning ordinances would be much less effective at excluding established, lawful land users and uses had state courts not weakened or done away with the vested private rights doctrine in the twentieth century.287 The civil rights achievement of Shelley v. Kraemer 288 resulted from the Court's refusal to allow neighbors with no enforceable property rights in the Shelleys' home to deprive them of their vested title in the home.28 9 And public accommodation statutes that secure equal access rights for racial minorities declare pre-existing property rights that licensees enjoy at common law.290 Consider also that America's second civil rights movement was birthed and nursed behind closed doors on private property, in churches and homes where leaders planned bus boycotts and peaceful marches. 291
In between the civil rights movements of the mid nineteenth and twentieth centuries, two important proponents of improving the lives of Southern blacks were Booker T. Washington and his Tuskegee Institute colleague, George Washington Carver.292 In an era of social Darwinism and dehumanizing racial stereotypes, 293 Washington set out to demonstrate that black Americans are as virtuous and industrious as white Americans and as capable of owning property and producing marketable goods and services. 294 As one historian explains, "[h]e yearned to place black progress and black manhood on display at a time when white Southerners and Social Darwinists claimed that blacks were drifting backward into barbarism." 295 He made his case in large part by "displaying the very accomplishments whites so deeply wanted to deny," such as the "houses, schools, and businesses owned by African Americans," 296 and their ability to invent new technologies. 297
That Carver held patents 298 and innovated in other ways, vindicated Washington's case.299 Carver was not unique; recent scholarship has called overdue attention to the achievements of black inventors, including many patent owners, both before and after the Civil War.30 0 For example, the phrase "the real McCoy" is an homage to the inventor Elijah McCoy, whose parents were escaped slaves and who ultimately owned fifty-seven patents. 301 His innovations and products include enormous successes such as devices to lubricate steam cylinders and bearings in steam engines.30 2
Washington also made use of a negative example, the period in American history in which persons of African descent were prohibited from obtaining legal rights in their inventions. 30 3 The United States Government divested enslaved blacks of their natural inventors' rights in the 1858 Attorney General opinion, Invention of a Slave.3 4 Significantly, the Attorney General also concluded that the slave's owner could not patent the invention because the Patent Act limited patent rights to the original and first inventor.30 Washington and other proponents of racial equality called attention to Invent

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