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Abortion: A Woman’s Private Choice

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Chemerinsky and Goodwin, believing that Roe was “unquestionably correct in its conclusion” but that its progeny—cases that shifted the law to the undue burden test and toward upholding restrictions on abortion—were misguided, assert that abortion is best regarded under the Constitution as a private choice for each woman. Their article begins by explaining what they consider to be the flawed foundation for the protection of reproductive rights under the Constitution, before attempting to reconceptualize abortion rights and underscore the value and relevance of a reproductive justice framework by offering their normative argument that the right to abortion should be seen as a private choice left to each woman. Finally, their article discusses what it would mean for abortion to be regarded as a private choice. They identify and explore three implications: restoring strict scrutiny to examining laws regulating abortions, preventing the government from denying funding for abortions when it pays for childbirth, and invalidating the countless types of restrictions on abortion that have the purpose and effect of limiting women’s access to abortion rather than promoting safety and health. Ultimately, Chemerinsky and Goodwin write their Article because they believe it is essential that the country never go back to the days when women faced the horrific choice between an unsafe back-alley abortion and an unwanted child, and think it important to explain why the Constitution must be interpreted to protect reproductive freedom, including recognizing that abortion is a private choice for each woman.
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Pennoyer Was Right

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Pennoyer v. Neff has a bad rap. As an original matter, Pennoyer is legally correct. Compared to current doctrine, it offers a more coherent and attractive way to think about personal jurisdiction and interstate relations generally. To wit: The Constitution imposes no direct limits on personal jurisdiction. Jurisdiction isn’t a matter of federal law, but of general law—that unwritten law, including much of the English common law and the customary law of nations, that formed the basis of the American legal system. Founding-era states were free to override that law and to exercise more expansive jurisdiction. But if they did, their judgments wouldn’t be recognized elsewhere, in other states or in federal courts—any more than if they’d tried to redraw their borders. As Pennoyer saw, the Fourteenth Amendment changed things by enabling direct federal review of state judgments, rather than making parties wait to challenge them at the recognition stage. It created a federal question of what had been a general one: whether a judgment was issued with jurisdiction, full stop, such that the deprivation of property or liberty it ordered would be done with due process of law.

Reviving Pennoyer would make modern doctrine make more sense. As general-law principles, not constitutional decrees, jurisdictional doctrines could be adjusted by international treaty—or overridden through Congress’s enumerated powers. The Due Process Clause gives these rules teeth without determining their content, leaving space for federal rules to govern our federal system. In the meantime, courts facing jurisdictional questions should avoid pitched battles between “sovereignty” and “liberty,” looking instead to current conventions of general and international law. Pennoyer’s reasoning can be right without International Shoe’s outcome being wrong; international law and American practice might just be different now than they were in 1878 or 1945. But if not, at least we’ll be looking in the right place. General law may not be much, but it’s something: the conventional settlement of the problems of political authority at the root of any theory of personal jurisdiction. Recovering those conventions is not only useful for its own sake, but a step toward appreciating our deep dependence on shared traditions of general law.

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Toward a Science of Torture?

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Does torture “work?” Proponents, including President Trump and the architects of CIA “Enhanced Interrogation” say it does, by breaking terrorists’ resistance to revealing information that saves lives. Torture’s foes typically dismiss this claim as false to the point of fraud – fortuitous coincidence with torture’s unlawfulness. Neither view, I argue herein, rests firmly on evidence. Rival anecdotes, not data, have, so far, driven this debate. And a scientific answer is beyond our reach, since: (1) rigorous comparison between interrogation methods that do and don’t involve torture isn’t possible, and (2) studies of this sort would be transparently unethical. This hasn’t stopped the CIA from pursuing a research-based answer. Recently-released documents, reviewed here for the first time, reveal that the Agency looked to science for a resolution and raise the explosive possibility that the CIA conducted a clandestine program of human-subjects research on the risks and efficacy of torture. What can be said, based on the available science, is that there’s no evidence that torture is more effective than lawful interrogation, and some reason to suspect that interviewing strategies grounded in state-of-the-art understandings of persuasion and cognition work best of all. What can also be said is that: (1) America’s post-9/11 torture program wrecked lives, and (2) torture has wide appeal, as symbolic riposte to the powerlessness many feel in the face of vertiginous economic and cultural change.
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The Accidental Death Penalty

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Manderly considers Carol and Jordan Steiker’s new book, Courting Death: The Supreme Court and Capital Punishment, which he calls “an extraordinary scholarly achievement” that “immediately takes its place as the seminal text” on capital punishment. He describes Courting Death “most damningly [as] a condemnation of the way the Supreme Court—and lawyers in general—talk about complicated ethical issues, a vivid illustration of how disempowering and problematic it is for judges to drape themselves ‘in the longiloquent language of a generalized logic.’”
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Equity Crowdfunding of Film—Now Playing at a Computer Near You

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Prior the SEC’s recent adoption of a crowdfunding exemption to various securities regulations, the ability to crowdsource funding in exchange for equity in a given venture was hampered by legal requirements that often made the concept prohibitively expense. Gold’s Note first examines the crowdfunding exemption and analyzes its potential impact on the financing of independent film, before surveying securities laws before the exemption—specifically the aspects of the laws serving as barriers to equity crowdfunding and the rationale for the exemption. He then analyzes the JOBS Act and the rules promulgated by the SEC, explaining how the crowdfunding exemption works in practice, before focusing on film finance—evaluating the benefits and risks of the equity financing of movies, both from the perspective of the filmmaker and the potential investor.
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Potential Citizens’ Rights: The Case for Permanent Resident Voting

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Howard argues that permanent residents should be given the right to vote in state and local elections because excluding persons from the right to vote is often the equivalent, as a practical matter, of excluding them from genuine representation. His Note proceeds by addressing the history and current state of noncitizen voting, before describing how the current system of representation is inadequate for permanent residents. He then analyzes the constitutional and historical arguments in favor of permanent resident voting and addresses counterarguments to this expansion of suffrage, before describing a proposal to extend suffrage to permanent residents while accounting for many opponents’ concerns with noncitizen voting.
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Revising Markman: A Procedural Reform to Patent Litigation

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This Note presents a procedural reform to the current process of patent litigation in the United States, specifically focusing on claim construction and appellate review. This Note owes a great deal to John F. Duffy and his influential piece, On Improving the Legal Process of Claim Interpretation: Administrative Alternatives. Mr. Duffy’s article suggested how administrative law principles could be incorporated into patent law to reduce inefficiency. At its core, this Note operationalizes and expands on the concepts of Mr. Duffy’s article by using the new programs from the America Invents Act,2 which was signed into law twelve years after Mr. Duffy’s article was published. For a more in-depth analysis of the rationale for applying administrative law principles to patent law, please see his work. This Note begins by providing a brief background on the basics of patent law, patent litigation in the United States, the current problems facing our patent system, as well as background on relevant administrative law principles and how these principles can be integrated into patent law. Building off this foundation, the Note will outline the objectives of the proposed procedural reform, outline the proposal itself, and discuss implementation concerns related to the proposal.

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Can Congress Authorize Judicial Review of Deferred Prosecution and Nonprosecution Agreements? And Does It Need To?

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Existing legislation affords the federal judiciary a minimal role in overseeing prosecutors’ use of deferred prosecution agreements (DPA) and no role in overseeing nonprosecution agreements (NPA). The judiciary’s only potential foothold to review DPAs is the Speedy Trial Act. The Act provides for a time extension pursuant to a DPA but only “with the approval of the court.” The D.C. Circuit in United States v. Fokker Services recently interpreted this clause narrowly. In an opinion by Judge Sri Srinivasan, the court interpreted the clause against a “backdrop of long-settled understandings about the independence of the Executive with regard to charging decisions.” It found that “[n]othing in the statute’s terms or structure suggests any intention to subvert those constitutionally rooted principles so as to enable the Judiciary to second-guess the Executive’s exercise of discretion over the initiation and dismissal of criminal charges.” The Act therefore “confers no authority” to withhold approval of a DPA “based on concerns that the government should bring different charges or should charge different defendants.” In this Note, Zendeh argues that Judge Srinivasan got the law right but, in the process, potentially got the Constitution wrong. The “backdrop of long-settled understandings” he cites is largely a product of prudential considerations that lack constitutional potency. The constitutionally rooted remainder does not bar Congress from establishing judicially enforceable criteria that prosecutors must follow when determining who to enter into an agreement with, the scope of the agreement, whether breach of the agreement has occurred, and how to enforce an agreement. In short, meaningful judicial review of corporate N/‌DPAs is constitutionally permitted.

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Trauma and the Welfare State: A Genealogy of Prostitution Courts in New York City

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At least since the early twentieth century, informal specialized prostitution courts have tried to double as social welfare agencies. For this reason, prostitution courts illustrate in particularly explicit ways how public welfare administration and criminal court administration share similar ideas and practices and how these ideas and practices reinvent themselves over time. Cohen’s Article traces three moments of prostitution court reform in New York City: the New York Women’s Court that opened in Manhattan in 1910, the Midtown Community Court that opened in Manhattan in 1993, and four new prostitution courts that opened in New York City in 2013. It examines how court reformers in each moment used informal procedure to promote social welfare, social control, and individual responsibility, and it ties each approach to changing conceptions of the American welfare state. Ultimately, the Article argues that the genealogy of prostitution courts illuminates for the present how court reformers are using the language of trauma to negotiate the welfare logics of today.

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Liberty in Loyalty: A Republican Theory of Fiduciary Law

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Conventional wisdom holds that the fiduciary duty of loyalty is a prophylactic rule that serves to deter and redress harmful opportunism. This idea can be traced back to the dawn of modern fiduciary law in England and the United States, and it has inspired generations of legal scholars to attempt to explain and justify the duty of loyalty from an economic perspective. Nonetheless, this Article argues that the conventional account of fiduciary loyalty should be abandoned because it does not adequately explain or justify fiduciary law’s core features. The normative foundations of fiduciary loyalty come into sharper focus when viewed through the lens of republican legal theory. Consistent with the republican tradition, the fiduciary duty of loyalty serves primarily to ensure that a fiduciary’s entrusted power does not compromise liberty by exposing her principal and beneficiaries to domination. The republican theory has significant advantages over previous theories of fiduciary law because it better explains and justifies the law’s traditional features, including the uncompromising requirements of fiduciary loyalty and the customary remedies of rescission, constructive trust, and disgorgement. Significantly, the republican theory arrives at a moment when American fiduciary law stands at a crossroads. In recent years, some politicians, judges, and legal scholars have worked to dismantle two central pillars of fiduciary loyalty: the categorical prohibition against unauthorized conflicts of interest and conflicts of duty (the no-conflict rule), and the requirement that fiduciaries relinquish unauthorized profits (the no-profit rule). The republican theory explains why these efforts to scale back the duty of loyalty should be resisted in the interest of safeguarding liberty.

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How I Learned to Stop Worrying and Love Nudges

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Rachlinski considers Cass R. Sunstein’s book—his most recent in a series on behavioral nudging—The Ethics of Influence: Government in the Age of Behavioral Science. Rachlinski views this entry by Sunstein as an effort to consolidate his responses to various ethical critiques of nudging, also known as “libertarian paternalism,” the core concept of which is to design environments in which people make choices so as to facilitate decisions that enhance well-being. The essence of the critiques levied against nudging is that “government should do more to educate its citizens to make well-informed choices, rather than simply structure the choice to guide them with a hidden benevolent hand.” This Book Review outlines such ethical critiques and considers Sunstein’s replies.

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Is Mass Incarceration History?

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Simon reviews Elizabeth Hinton’s book, From the War on Poverty to the War on Crime: The Making of Mass Incarceration in America, a study of federal crime policy from the Kennedy through Reagan Administrations that Simon dubs “the most telling example yet of this new history of the American carceral state.” Hinton draws on confidential memos and other materials from the National Archives and presidential libraries to “draw a far more precise picture than ever before of what national leaders believed they knew about crime and how they intended to act.” Simon finds that her account “confirms the centrality of political considerations to the shaping of mass incarceration urged by earlier studies, while giving us a much more detailed and pointed analysis of what those political considerations were.” The Book Review proceeds by examining the book’s major findings, before turning to Hinton’s historiographical contributions and her lessons to those who advocate for ending mass incarceration.

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Against Gay Potemkin Villages: Title VII and Sexual Orientation Discrimination

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Professor Kreis examines a recent ruling from the Eleventh Circuit Court of Appeals that Title VII does not prohibit sexual orientation employment discrimination. He argues against the position taken by one member of the panel that, for Title VII’s purposes, sexual orientation as a status is severable from individuals’ same-sex attractions. The piece examines why this status-conduct dichotomy theory is both inconsistent with Supreme Court gay rights precedents and Title VII’s protections against racial and religious discrimination. Please note that this draft version is subject to change.

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Young Adults Are Different, Too: Why and How We Can Create a Better Justice System for Young People Age 18 to 25

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In this note, Stamm argues for folding young adults into the juvenile justice system by reviewing the various ways in which many states have already taken the lessons of the juvenile system—lots of treatment and programming, age-limited facilities, shorter sentences, and sealed records—and applied them to the developmentally similar young adult population.

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News

Volume 96 Editorial Board

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The Texas Law Review is proud and excited to announce the Editorial Board for Volume 96. The members of Volume 95 are happy to pass the torch to such a fantastic group of people. View the Volume 96 Editorial board Masthead.

TLR Presents: Tallinn Manual 2.0

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The Texas Law Review, the Robert S. Strauss Center for International Security and Law at the University of Texas at Austin, and the Lieber Institute for Law & Land Warfare at the United States Military Academy are hosting a symposium on the soon-to-be-released Tallinn Manual 2.0. Visit www.tallinnmanualsymposium.com for more information and registration.

Congratulations Volume 95 New Members!

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The Texas Law Review is proud to announce its volume 95 membership!  Congratulations to all our new members, and welcome to TLR! The Masthead is now available for download.

Congratulations Volume 94 New Members!

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The Texas Law Review is proud to announce its volume 94 membership!  Congratulations to all our new members, and welcome to TLR! The Masthead is now available for download.