Category: Law Rev Forum


Announcing Postscript, the Online Companion to the Southern California Law Review


The Southern California Law Review is pleased to announce the launch of its new online companion, Postscript. Other top law schools have added online companions, and the Law Review finds these new mediums to be a developing and important component of legal scholarship. Postscript permits us to publish a wider variety of material than we can accommodate in our printed journal. Postscript is intended to enhance legal scholarship by providing a forum where academics, practitioners, and students can respond to articles published in the Law Review and to recent legal developments in a concise and expedited format.

Postscript invites two categories of submissions. First, Postscript publishes responses to articles published in the Law Review. Second, Postscript publishes commentaries on legal developments and significant court decisions. We issue topic prompts for commentaries. In addition, authors are free to submit commentaries on other topics.

Postscript utilizes a more expedited production process than the Law Review. Thus, we encourage responses and commentaries under 3,000 words and lightly footnoted. Academics, judges, practitioners, and students are free to submit pieces of original scholarship to Postscript.

For more information, please visit our website. For comments or suggestions, please e-mail We invite and look forward to your participation in Postscript.


October in The Pocket Part


This October, The Yale Law Journal Pocket Part published a variety of articles. To access the following pieces, click on the links below, or find them on our Most Recent tab online at

The Capabilities Approach and Ethical Cosmopolitanism: A Response to Noah Feldman

In response to Professor Noah Feldman’s book review, Cosmopolitan Law?, Professor Martha C. Nussbaum distinguishes her political theory, the capabilities approach, from the ethical doctrine of cosmopolitanism. Furthermore, Professor Nussbaum clarifies the relationship between her theory and that of Rawls, Pogee, and Beitz.

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Response: Just Following Orders


PENNumbra‘s featured works of October are now available at

The latest featured October Response on PENNumbra is Just Following Orders, by Roderick M. Hills, Jr. It is an analysis of Norman R. Williams’s 2006 article, Executive Review in the Fragmented Executive: State Constitutionalism and Same-Sex Marriage. Professor Hills praises Professor Williams for recognizing that “whatever the merits of [the departmentalist and judicial supremacist] positions as interpretations of the U.S. Constitution, both are hopelessly unpersuasive when applied to state constitutions.” He then examines Professor Williams’s defense of “a third method—‘the legislative model’—for determining when agencies should just follow orders from the legislature.” However, he ultimately concludes that “Professor Williams’s theory ignores the facts about democratic accountability and expertise that most of us would regard as critical,” and argues that “this gap suggests a problem with his theory”—a gap that Professor Hills hopes Professor Williams fills in his next examination of executive review.

As always, please click on the PENNumbra link to read previous Responses and Debates, or to check out pdfs of the Penn Law Review’s print edition articles.


Responses: The Disability Integration Presumption


PENNumbra‘s featured works of October are now available at

As the legal wrangling over the cost of disability education rages on, Professors Samuel R. Bagenstos and Mark C. Weber each provide unique responses to Professor Ruth Colker’s 2006 article, The Disability Integration Presumption: Thirty Years Later.

Professor Bagenstos writes in Abolish the Integration Presumption? Not Yet, that while Professor Colker’s arguments are compelling, “[h]er article fails to establish that the IDEA’s individualized integration presumption imposes significant costs, and . . . downplay[s] significant benefits of that presumption.” He concludes that the “supposed failure[s] of integration . . . reflect [more on] the education system’s refusal to provide true integration” than on the presumption’s validity.

Professor Weber, in A Nuanced Approach to the Disability Integration Presumption, applauds Professor Colker for attempting to look at the integration presumption in a new way, but worries that her stance on the presumption is misplaced. Rather than abandoning the presumption, Professor Weber argues that integration can work well as long as educators focus on “which services and protections are being offered to educate a child within general education. . . . The way to equality is to provide extra services, technology, and accommodations in regular classes so that the children with disabilities do not fall behind.”

As always, please click on the PENNumbra link to read previous Responses and Debates, or to check out pdfs of the Penn Law Review’s print edition articles.


Debate: Can Handguns Be Effectively Regulated?


PENNumbra’s featured works of October are now available at

Recent reports on crime statistics published by the FBI show that violent crime has increased for the second straight year across the nation. In particular, the FBI’s reports demonstrate that in major metropolitan areas, such as Philadelphia, homicides have increased by 6.7%.

In the midst of this upsurge in violent crime, Professors James B. Jacobs, of New York University, and David Kairys, of Temple University, reengage with America’s long-running debate over the effectiveness of gun (specifically handgun) control regulation, in their debate, Can Handguns Be Effectively Regulated?

Both Professor Jacobs and Professor Kairys agree that the debate on handgun control “at its core is [related to] a personal, cultural, and political identification of guns with personal self-worth . . . , freedom, liberty, and . . . God and country.” Whereas Professor Jacobs accepts this as a political reality and uses it as an anchor from which to engage in this discussion, Professor Kairys steadfastly disagrees: “The best hope for emerging from our disgraceful state of denial is to respectfully engage and challenge the cultural and political identification of guns with our nation’s highest ideals and the deadly legacy of that identification as it is currently conceived.”

As always, please click on the PENNumbra link to read previous Responses and Debates, or to check out pdfs of the Penn Law Review’s print edition articles.


Call For Papers: State Law


Call for Papers: State Law

The Yale Law Journal Pocket Part is soliciting commentaries for two end-of-year issues: one issue will focus on new developments in state courts, and the other will focus on new developments in state legislatures. Our goal is to bring critical focus to an area of lawmaking that deserves greater attention in the legal literature, and we invite you to submit a commentary on a state law topic of your choosing.

Commentaries may explore a legal development at the state level that has not been extensively reviewed in legal scholarship and the popular press, or present a novel argument on a timely issue that has received attention.

Submissions should be no more than 1,500 words. We encourage authors to write in a style accessible to policy-makers and practitioners. For a detailed style guide and instructions for submitting your piece, please visit our website,, and follow the link for “Submissions.”

The deadline for submissions for both issues is Friday, November 2, 2007.


The Supreme Court, the Federal Circuit, and Patent Law


The Michigan Law Review’s companion journal First Impressions today published an online symposium on the Supreme Court, the Federal Circuit, and Patent Law. The symposium takes place against a backdrop of three recent Supreme Court decisions affecting patent law—KSR v. Teleflex, Microsoft v. AT&T, and eBay v. MercExchange.

A diverse group of authors considers whether these cases together represent, as some commentators have suggested, a recent upheaval in patent law and a modified relationship between the Federal Circuit and the Supreme Court. The extended post contains a more complete description of the symposium as well as links to the essays.

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September Responses


PENNumbra has recently featured a number of excellent new responses to several of the Penn Law Review’s print edition articles:

Benjamin C. Zipursky, in Evidence, Unfairness, and Market-Share Liability: A Comment on Geistfeld, responds to Mark A. Geistfeld’s The Doctrinal Unity of Alternative Liability and Market-Share Liability, arguing that the proposals in Geistfeld’s “provocative and insightful” article may be too far-reaching, and specifically contending that Geistfeld’s “arguments made from a normative point of view for the principle of evidential grouping are unsound.”

David D. Meyer, in The Geography of Family Privacy, responds to Laura A. Rosenbury’s Between Home and School, praising Rosenbury for “calling attention to the lack of scholarship addressing the childrearing that takes place” outside of the home and school environs, but noting that he remains unconvinced that it wouldn’t be better to use location “not as an organizing principle, but as a more indeterminate factor in calibrating the strength of justification required of the state for any intervention in childrearing.”

Paul E. McGreal, in In Defense of Complete Preemption, responds to both Gil Seinfeld’s The Puzzle of Complete Preemption and Trevor W. Morrison’s response to Seinfeld, Complete Preemption and the Separation of Powers, arguing that both Geistfeld and Morrison fail to fully conceptualize the well-pleaded complaint rule and asserting that “the complete preemption doctrine and the bar on pleading anticipated defenses are simply two sides of the well-pleaded complaint coin.”

As always, please click on the PENNumbra link to read previous Responses and Debates, or to check out pdfs of the Penn Law Review’s print edition articles, including Issue 6 of Vol. 155—the Symposium Issue, featuring the culmination of the conversation that began last November when the Penn Law Review held a Symposium on the topic, “Responses to Global Warming: The Law, Economics, and Science of Climate Change.”

Scholars interested in participating in a debate on PENNumbra, or in writing a response to any print edition article, PENNumbra debate, or previous PENNumbra response should send an email to online@pennumbra.con.


Debate: Consumer-Driven Health Care


PENNumbra has recently published this debate between Professor Kristin Madison of the University of Pennsylvania and Professor Peter Jacobson of the University of Michigan:

You won’t hear many health experts claim that the American healthcare system is functioning perfectly in terms of core considerations such as cost, access, and quality. The question that arises with the advent of any new policy approach seeking to improve the system is obvious: Does the change represent a step forward or backward? Professors Kristin Madison, of Penn, and Peter Jacobson, of the University of Michigan, take up this question in regard to the latest innovation in health care policy—consumer-directed healthcare (CDHC).

Professor Madison argues that while CDHC is not a panacea, “[e]ven if its shortcomings prevent its full diffusion through the American health care system, CDHC will still . . . help[] to establish a foundation for future reforms in health care finance and delivery, [and] has the potential to improve the health care system in the long run.” Professor Jacobson’s response? “CDHC is a direct attack on the idea that health care differs from other market commodities because of its moral aspirations . . . . For those who believe that equity should be a fundamental attribute of health care delivery, CDHC represents a huge step backwards.” Nonetheless, Professor Madison is convinced that CDHC will be a lightning rod that stirs the American health care system out of its complacency and “forces us to confront the tradeoffs inherent in any health care system in a resource-constrained world.“ Professor Jacobson is not content to wait and see how the American public reacts to CDHC: “If the policy focus is on CDHC, equity will be subordinated. If universal coverage dominates, CDHC proponents are probably right that cost and quality issues will be subordinate. For me, it’s an easy choice—helping those without insurance to have a minimal acceptable level of care.”

Read the whole debate.


The Lost Promise of Civil Rights



The Lost Promise of Civil Rights. By Risa L. Goluboff. Cambridge, Mass.: Harvard University Press. 2007.

In Brief, the online companion to the Virginia Law Review, today posted a book excerpt from The Lost Promise of Civil Rights, by Virginia Law Professor Risa L. Goluboff.

Professor Goluboff argues that Brown v. Board of Education left “much of Jim Crow . . . unchallenged.” This resulted from “lawyers’ strategic litigation choices about which cases to pursue and which to avoid, which harms to emphasize and which to ignore, which constituencies to address and which to disregard.” Professor Goluboff thus “suggests that by uncovering historical alternatives to the civil rights law we know as our own, we can broaden our imagination about the possibilities for addressing the remnants of Jim Crow still facing the nation today.”

The book, published recently by Harvard University Press, has already received significant acclaim. Harvard Law Professor Mark Tushnet writes that The Lost Promise of Civil Rights “offers readers a brilliant reconceptualization of civil rights litigation.” Penn History Professor Thomas Sugrue calls the book “original, provocative, and persuasive.”

Professor Goluboff’s book will also be the subject of a Book Review by NYU Professor Derrick Bell in Volume 94 of the Virginia Law Review. The Book Review is scheduled to run in March 2008.

The excerpt is available on the In Brief site. [PDF]