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Constitutional Archetypes

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Law contends as an empirical matter that constitutional narratives of the state boil down to a combination of three basic archetypes—namely, a liberal archetype, a statist archetype, and a universalist archetype. The liberal archetype is closely identified with the common law tradition and views the state as a potentially oppressive concentration of authority in need of regulation and restraint. The statist archetype, in contrast, is associated with the civil law tradition and hails the state as the embodiment of a distinctive community and the vehicle for the achievement of the community’s goals. The universalist archetype, the newest and most prevalent of the three, is symbiotically intertwined with a post-World War II, post-Westphalian paradigm of international law that rests the legitimacy of the state upon the normative force of a global legal order that encompasses both constitutional law and international law. Law conducts an empirical analysis of constitutional preambles to demonstrate his taxonomy.

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Immigrant Protective Policies in Criminal Justice

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Eagly argues that protective gaps for immigrants in local criminal justice policies have evolved against a backdrop of an incomplete set of organizing principles for advancing such policies. The justifications most often put forth by advocates, scholars, and policymakers in favor of protective criminal justice policies are community policing, immigrant integration, and budgetary constraints. Each of these justifications, while important, has supplied only a partial framework for formulating criminal justice policy that decouples local policing and prosecuting from federal immigration enforcement priorities. To help guide the development of next-generation protective policies, Eagly explores an alternative justification for immigrant protective policies—immigrant equality, which seeks to insulate noncitizens from harsher forms of punishment, racial and ethnic profiling, and other substantive and procedural distortions that immigration enforcement imposes on criminal cases involving noncitizens. To illustrate how adherence to a norm of immigrant equality would further refine and shape next-generation protective policies, Eagly applies the approach to current criminal justice issues facing localities around the country.

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The Invisible Revolution in Plea Bargaining: Managerial Judging and Judicial Participation in Negotiations

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King and Wright, in the most comprehensive study of judicial participation in plea negotiations since the 1970s, reveal a stunning array of new procedures that involve judges routinely in the settlement of criminal cases. Interviewing nearly one hundred judges and attorneys in ten states, they found that what once were informal, disfavored interactions have quietly, without notice, transformed into highly structured best practices for docket management. King and Wright learned of grant-funded problem-solving sessions complete with risk assessments and real-time information on treatment options; multicase conferences where other lawyers chime in; settlement courts located at the jail; settlement dockets with retired judges; full-blown felony mediation with defendant and victims; felony-court judges serving as lower court judges; and more. They detail the reasons these innovations in managerial judging have developed so recently on the criminal side, why they thrive, and why some judges have not joined in.

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The Brave New Path of Energy Federalism

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For much of the past eighty years, courts have fixated on dual sovereignty as the organizing federalism paradigm under New Deal-era energy statutes. Dual sovereignty’s reign emphasized a jurisdictional “bright line,” a fixed and legalistic boundary between federal and state regulators. Rossi explores how three recent Supreme Court decisions limit dual sovereignty’s role as the organizing federalism principle under energy statutes. These recent decisions do not approach federal–state jurisdiction as an either/or proposition, but instead recognize it is concurrent for many energy transactions. Concurrent jurisdiction opens up a brave new path of possibilities for energy federalism but also has been a target of criticism, including in Justice Scalia’s last published dissent. Rossi defends concurrent jurisdiction as consistent with the language, history, structure, and primary purposes of energy statutes.

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The Surprising Resilience of the Patent System

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Mark Lemley states that the patent system “seems in the midst of truly dramatic change.” Despite this, Lemley finds that “something curious has happened to the fundamental characteristics of the patent ecosystem during this period: very little.” Lemley explores this surprising result, first by reviewing the changes to the patent system in the past thirty-five years, discussing the pendulum swings between perceived overprotection and perceived underprotection and the concerns lawyers have raised in both directions, and presenting evidence of the resilience of the patent system, before offering some possible explanations for this disconnect.

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What Are Tax Havens and Why Are They Bad?

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In this book review, Conor Clarke consider’s Gabriel Zucman’s new book, The Hidden Wealth of Nations: The Scourge of Tax Havens. Clarke first summarizes and explains Zucman’s central findings for a legal audience, then situates those findings against the backdrop of two long-running debates in international taxation—what
is a tax haven, and why are they bad?—before finally commenting on the prescriptions Zucman offers for battling unreported wealth. Read More

Immigrant Neighbors, Workers, and Caregivers in Our Midst: What We Owe Each Other

By | TLR Vol. 95-1 | No Comments
Michael Sullivan reviews David Miller’s new book—Strangers in Our Midst—which, as described by Sullivan, “seeks to balance citizen apprehensions about regulating, integrating, and potentially naturalizing millions of newcomers, while meeting international obligations and safeguarding the basic human rights of all migrants. Miller begins and concludes his account of immigration regulation, integration, and naturalization from what he describes as both a ‘communitarian’ and ‘social democratic’ perspective. As a communitarian, he disavows the idea that ‘a political philosopher could lay down’ a single immigration policy ‘as the just or correct policy for all the liberal democracies (let alone all societies) to pursue.’ He is adamant about the value of national identity grounded in the shared historical experiences of people with memories and obligations to one another that extend into the past, are remembered today, and extend into the future. As such, he challenges the notion that there is a universal prescription for how diverse nations should think about or regulate immigration and naturalization.

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Wind Energy’s Dirty Word: Decommissioning

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William Stripling’s note seeks to illustrate the general failure of current law to ensure decommissioning of America’s wind farms. He discusses the history and current landscape of domestic wind-energy generation, before focusing on the best practices in wind-farm decommissioning, aesthetic and environmental harms posed by abandoned wind farms, and the challenges and costs of removing wind turbines. He then surveys the state of current law regarding
decommissioning across U.S. jurisdictions, before finally discussing common pitfalls of current decommissioning law and suggesting how these pitfalls are best avoided.

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Arbitration Unbound: How the Yukos Oil Decision Yields Uncertainty for InternationalInvestment Arbitration

By | TLR Vol. 95-1 | No Comments
Lena Serhan reviews a large dispute under the Energy Charter Treaty between an oil company and the Russian Federation, which resulted in the largest arbitration in history with $50 billion awarded to the oil company. However, Russia appealed the award to a Dutch district court, and in a surprising opinion, the court quashed the entire arbitration award, claiming that the tribunal lacked jurisdiction to decide the case despite the arbitration provision in the ECT. Serhan argues that the Dutch court’s opinion leads to poor policy in international law, will deter the effectiveness of international arbitration in multilateral treaties, and will chill future investments in energy—regardless of whether the Dutch court was influenced by Russian pressures—because investors cannot count on the protection that the arbitration provision usually provides.

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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.