Category: Law Rev Forum


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]


Symposium on Televising the Supreme Court


The Michigan Law Review’s companion journal First Impressions today published an online symposium discussing the televising of Supreme Court proceedings. The symposium takes place against a backdrop provided by legislation pending in the House and Senate that would require the Supreme Court to televise its proceedings.

A diverse group of authors explores the implications of the prospective legislation and considers potential risks and benefits of televising the Court’s proceedings. The extended post contains a more complete description of the symposium as well as the full text of the essays.

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Announcing the Law Review Forum Project


I am very pleased to announce a new project here at Concurring Opinions – the Law Review Forum Project. We will be hosting online forums for several law reviews. Increasingly, law reviews are creating online forums as companions to their regular law review issues. These forums contain very short response pieces, essays, debates, and other works that attempt to bridge the gap between regular legal scholarship and the blogosphere.

Journals seeking to create their own online forum face two daunting challenges. First, they must create and actively maintain a web presence. Second, they must find ways to attract readers, which is difficult in an age where so many blogs and other websites exist. A wide readership for a website depends upon having daily content. Law review forums produce content sporadically throughout the year at intervals that are not regular enough to attract a significant readership.

Therefore, we have invited a number of law reviews to participate in a partnership with our blog. Throughout the year, each law review will periodically post forum essays here at Concurring Opinions. We are not requiring an exclusive license, so participating law reviews can also cross-post at their own websites.

We see this as a mutually-beneficial arrangement. We can bring great content to our blog, and law reviews can reach our significant audience without the pressures of having to build and maintain an online readership or of having to produce content with regularity.

Law reviews currently with and without existing forums will be participating. Thus far, the following law reviews have agreed to participate:

* Harvard Law Review

* Virginia Law Review

* Michigan Law Review

* University of Pennsylvania Law Review

* Northwestern Law Review

* UCLA Law Review

* George Washington Law Review

In the near future, we hope to be expanding the list of participating law reviews.