State accountability for violations of intellectual property rights: How to "fix" Florida prepaid (and how not to)

In 2 companion cases decided during the October 1998 Term, the Supreme Court raised significant barriers to federal intellectual property suits against state governments. Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank held that the constitutional doctrine of state sovereign immunity blocked Congress's effort to subject states to liability for patent infringement under the Patent and Plant Variety Protection Remedy Clarification Act. The other case, College Savings Bank v. Florida Prepaid Postsecondary Education Expense Board, similarly held that Congress could not subject states to damages liability for false advertising under the Lanham Act. While neither of these cases dealt with the copyright laws implicated by our hypothetical, the 5th Circuit has already relied on Florida Prepaid and College Savings Bank to also bar copyright suits against state entities. These developments have sparked efforts in Congress to amend the federal intellectual property laws to ensure that state governments will remain accountable for violations of federal rights. In this Article, it is considered what form such legislation ought to take in order to withstand future constitutional challenge.