The Lost World of Administrative Law

Daniel A. Farber & Anne Joseph O’Connell

92 Texas L. Rev. 1137

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In this Article, Professors Farber and O’Connell argue that the reality of the modern administrative state diverges considerably from the series of assumptions underlying the Administrative Procedure Act (APA) and classic judicial decisions that followed the APA. These assumptions called for statutory directives to be implemented by one agency led by Senate-confirmed presidential appointees with decision-making authority. The implementation (in the form of a discrete action) is presumed to be through statutorily mandated procedures and criteria, with judicial review to determine whether the reasons given by the agency at the time of its action match the delegated directions. They describe in depth this lost world on which current administrative law is based. They go on to explain how the realities of the modern administrative state have come to differ greatly from the intended circumstances. They then weigh the benefits and costs of this shift, tentatively concluding that the costs trump the benefits. Finally, they conclude that returning to this lost world is impossible and instead propose some possible reforms in all three branches of the federal government to make the match between current realities and administrative law stronger.

The Architects of the Gideon Decision: Abe Fortas and Justice Hugo Black

Abe Krash

92 Texas L. Rev. 1191

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In this Essay, Professor Krash examines the problems that Abe Fortas, the advocate for Clarence Gideon before the Supreme Court, and Justice Hugo Black, the writer of the opinion in the Gideon v. Wainwright decision, faced when addressing the Gideon issue and the manner in which they resolved these problems.

Retuning Gideon’s Trumpet: Telling the Story in the Context of Today’s Criminal-Justice Crisis

Jonathan A. Rapping

92 Texas L. Rev. 1225

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In this Essay, Professor Rapping reexamines the message of Anthony Lewis’s book Gideon’s Trumpet in light of today’s criminal-justice system. He argues that today’s system is even less fair and humane than the system that Gideon faced. However, Professor Rapping believes that the right to counsel is just as important today as it has ever been. He posits that the system needs a dedicated and well resourced staff of public defenders to adequately protect the poor and indigent from the system. Only with such an army of defenders, Professor Rapping argues, can the criminal justice system live up to the lofty goals that Anthony Lewis hoped to achieve.

Bridging the Information Gap: The DOJ’s “Pattern or Practice” Suits and Community Organizations

Alexandra Holmes

92 Texas L. Rev. 1241

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The Violent Crime Control and Law Enforcement Act of 1994 allows the Department of Justice to bring a complaint, codified in §14141, against police departments that have consistent records of police brutality. This powerful tool, however, has been somewhat limited by the dearth in information about which police departments are in need of the Department of Justice’s intervention. In this Note, Ms. Holmes examines traditional remedies for police brutality such as the exclusionary rule, § 1983 claims, criminal prosecution, and civilian oversight models, and explains the advantages that § 14141 has over these measures. She then details the resources problem that the Department of Justice faces in pursuing § 14141 litigation. Finally, Ms. Holmes examines the feasibility and desirability of providing the Department of Justice with needed information by implementing a model of information gathering by community groups.

Qualified Immunity and Constitutional-Norm Generation in the Post-Saucier Era: “Clearly Establishing” the Law Through Civilian Oversight of Police

Ryan E. Meltzer

92 Texas L. Rev. 1277

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Since the Supreme Court ended the mandatory merits-first approach instituted in Saucier v. Katz, scholars have argued that the development of constitutional norms could come to a standstill. In this Note, Mr. Meltzer argues that the work of civilian external investigatory oversight bodies can serve as at least a partial antidote to this possible constitutional stasis. In particular, Mr. Meltzer advocates for the investigative findings and policy recommendations of agencies like the New York Civilian Complaint and Review Board to be given at least the same weight as internal police regulations and advisory reports by external compliance agencies, and possibly as much weight as regional appellate court opinions, in the qualified immunity analysis. Mr. Meltzer goes on to show that not only is this proposal consistent with the purposes of § 1983 litigation and the qualified immunity doctrine, but the work it envisions is already taking place at oversight boards around the nation. He then argues that the sole structural changes necessary to optimally implement this proposal relate to the formalization and publication of the agencies’ findings and recommendations.

Congratulations Volume 92 New Members!

The Texas Law Review is proud to announce its volume 92 membership!  Congratulations to all our new members, and welcome to TLR!

The Masthead is now available for download:

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Fall Pro Bono Event

Thanks to all our Texas Law Review members who participated in the DACA Clinic this Fall Semester. Several of them are featured in the UT Law Magazine, which can be found here. We look forward to our Spring Pro Bono Event, the Veteran’s Clinic sponsored by Gibbs & Bruns.

New Member Orientation

The Texas Law Review conducts an annual new member orientation, which
introduces new members to the journal and provides the foundational training for the
work they will perform in the coming year.

Thank you to our Volume 91 New Member Orientation sponsors:

Gold Level Sponsors

Andrews Kurth LLP
Atlas Hall
Baker Botts LLP
Baron & Budd PC
Beck, Redden & Secrest LLP
Bracewell & Giuliani LLP
Cleary Gottlieb Steen & Hamilton LLP
Hunton & Williams LLP
Locke Lord Bissell & Liddell LLP
Reynolds, Frizzell, Black, Doyle, Allen & Oldham LLP
Simpson Thacher & Bartlett LLP
Susman Godfrey LLP
Weil Gotshal & Manges

Silver Level Sponsors

Haynes & Boone LLP

Bronze Level Sponsors

Slack & Davis LLP
Akin Gump Strauss Hauer & Feld LLP