University of Notre Dame

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Print Volume 89, Issue 1

July 12, 2013

The first issue of Volume 89 of the Notre Dame Law Review will feature an impressive slate of articles, spanning diverse areas of the law and authored by some of the legal academy’s most esteemed scholars.

The lead article, Is Expert Evidence Really Different?, is written by Professors Frederick Schauer and Barbara Spellman from the University of Virginia School of Law.  In this piece, the authors explore the possibility that the Federal Rules’ disparate treatment of expert and lay testimony is not justified by either theory or practice.  Professor Schauer has been described as “one of the most influential scholars in the legal academy.”  His articles have appeared in prominent law reviews throughout his career, including the Yale Law Journal, the Harvard Law Review, and the Stanford Law Review.  Professor David Bernstein, an endowed professor at the George Mason University School of Law, has written a companion article titled The Daubert Counterrevolution.  His article discusses the ways in which lower federal courts have attempted to evade the Supreme Court’s guidance in Daubert v. Merrell Dow Pharmaceuticals and urges the Court to re-affirm the principle espoused in that case—that expert testimony is different and should be treated as such.

Professor Michael Rappaport of the University of San Diego School of Law is one of the most well-respected and often-cited scholars on the topic of Originalism.  Issue 1 will feature his article, titled Originalism and the Colorblind Constitution, where Rappaport attempts to discern the original understanding of the Constitution as it pertains to racial classifications and specifically affirmative action.  Professor Rappaport’s earlier work on Originalism has been published in the Georgetown Law Journal, the Northwestern Law Review, and Constitutional Commentary, among others.  He has also co-written a book on Originalism with Professor John McGinnis that was published by the Harvard University Press.

Issue 1 also features articles written by two renowned legal historians—Notre Dame Law School’s own Barry Cushman and the University of Virginia School of Law’s Saikrishna Bangalore Prakash.  Professor Cushman’s article is titled NFIB v. Sebelius and the Transformation of the Taxing Power and examines the history of the tax-penalty distinction, ultimately concluding that Chief Justice Roberts and the Court may have overruled the Child Labor Tax Case and its progeny sub silentio with its decision in the health care case.  Professor Prakash’s article is titled The Vesting of Offices Under the Constitution and explores the interesting but often ignored question from Marbury v. Madison—exactly when did William Marbury’s commission become official?

The opening Issue concludes with a trio of Intellectual Property articles, each covering one of IP’s “big three” fields.  Professors Mark McKenna of the Notre Dame Law School and William McGeveran of the University of Minnesota Law School have written an article titled Confusion Isn’t Everything.  This piece argues that current trademark doctrine over-emphasizes the purpose of eliminating consumer confusion, and that doing so results in frequent and avoidable conflict with open markets and free speech.  Exploring the over-incidence of copyright enforcement against uses that are not actually infringements, Professor Ben Depoorter of the University of California Hastings College of Law has penned an article titled Copyright False Positives.  In this article, Depoorter analyzes the causes and effects of such false positives and offers policy recommendations targeted at mitigating their damage.  Issue 1 concludes with an article titled Public Patent Litigation written by Professor Amelia Smith Rinehart of the S.J. Quinney College of Law at the University of Utah.  In this article, Rinehart advocates for federal courts to expand the scope of permissible public interest patent litigation beyond the current framework promulgated in MedImmune, Inc. v. Genentech Inc.

Please check back soon for an update on Issue 2.