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October 2009

Debate exhaustion and exhilaration

I recently listened to the Federalist Society’s ScotusCast debate among Mark Lemley, Richard Epstein, Fred Von Lohmann, and Scott Kieff (in order of presentation), moderated by Adam Mossoff, on the issue of patent exhaustion after the Supreme Court’s Quanta v. LG decision. The discussion is timely, particularly given the recent CVSG on the somewhat related issue of copyright exhaustion for imports (i.e., foreign “first sales”) in Costco v. Omega. But I’m mostly interested here in commenting on the form of public discourse that this kind of on-line debate represents, and why we can’t have it in our national or local political debates for elected offices and policymaking.

This was what I would call “high art” in debate, at least at the outset.  Not only are these very sophisticated academics/lawyers and great public speakers, they were given significant, uninterrupted time — almost fifteen minutes each– to present their initial arguments before engaging in a much faster-paced and interactive Q&A session. The debate was also preceded by neutral factual information that placed the issues in context, and certainly was helpful for anyone coming to the issues new. The debate lasted for almost an hour and a half on a single topic, and the subsequent discussion was incredibly cogent and far-reaching (marred only by occasional talking over each other, reminiscent of the McLaughlin Group even if more insightful and trenchant).Read More »Debate exhaustion and exhilaration