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Incomplete Designs

By | TLR Vol. 94-5 | No Comments

Many legal rules are designed to address the imperfections of real-world institutions. Rules of justiciability and deference, statutes setting administrative deadlines, multinational treaties that protect foreign nationals—all are designed, at least to a degree, to minimize and correct the limitations of courts, agencies, and self-interested states at making the decisions the law requires of them.

But these and countless other efforts at institutional design are subject to a subtle yet pervasive problem. Rules intended to reallocate or restructure institutional authority typically cannot be made without further decisions of their own—to fill in details, to develop supporting structures, or to apply rules in individual cases. There is no assurance that an institution will be capable of making those decisions any more competently than it makes those decisions that the design is intended to improve. And the risk—indeed, the inevitability— that institutions will often make such decisions poorly has in practice undermined or negated the effectiveness of many proposed institutional reforms.

This Article explores this critical but underrecognized characteristic of institutional design, which it calls “incompleteness.” It details a number of real-world and academic designs in which incompleteness has generated significant or fatal problems that might have been avoided if this feature had been identified at the outset. It describes the unique problems presented by delegating institutional decisions to downstream actors, from circularity to imperfect veils of ignorance to entrenchment to system effects. And it develops the rudiments of a toolkit that might be used to engage in more complete and effective institutional design in the future.

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Owning Red: A Theory of Indian (Cultural) Appropriation

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In a number of recent controversies, from sports teams’ use of Indian mascots to the federal government’s desecration of sacred sites, American Indians have lodged charges of “cultural appropriation” or the unauthorized use by members of one group of the cultural expressions and resources of another.  While these and other incidents make contemporary headlines, American Indians often experience these claims within a historical and continuing experience of dispossession.  For hundreds of years, the U.S. legal system has sanctioned the taking and destruction of Indian lands, artifacts, bodies, religions, identities, and beliefs, all toward the project of conquest and colonization.  Indian resources have been devalued by the law and made available for non-Indians to use for their own purposes.  Seeking redresses for the losses caused by these actions, tribes have brought claims under a variety of laws, from trademark and copyright to the First Amendment and Fifth Amendment, and some have been more successful than others.  As a matter of property law, courts have compensated—albeit incompletely—the taking of certain Indian lands and have also come to recognize tribal interests in human remains, gravesites, and associated artifacts.  When it comes to intangible property, however, the situation is more complicated.  It is difficult for legal decision makers and scholars alike to understand why Indian tribes should be able to regulate the use of Indian names, symbols, and expressions.  Indeed, non-Indians often claim interests, sounding in free speech and the public domain, in the very same resources.  To advance understanding of this contested area of law, Professor Riley and Professor Carpenter  situate intangible cultural property claims in a larger history of the legal dispossession of Indian property—a phenomenon they call “Indian appropriation.”  It then evaluates these claims vis-à-vis prevailing legal doctrine and offers a normative view of solutions, both legal and extralegal.

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Presumption of Innocence or Presumption of Mercy?: Weighing Two Western Modes of Justice

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American criminal law has a deep commitment to the presumption of innocence.  Yet at the same time, American criminal justice is, by international standards, extraordinarily harsh.  Professor Whitman addresses this troubling state of affairs.  He contrasts the American approach with the approach of the inquisitorial tradition of continental Europe.  Inquisitorial justice, it argues, has a less far-reaching presumption of innocence than American justice does.  Yet if continental justice puts less weight on the rights of the innocent, it puts more on the rights of the guilty: while its presumption of innocence is comparatively weaker, it has what can be called a strong presumption of mercy.  The continental approach produces forms of criminal procedure that can shock Americans.  Continental trial in particular often seems to American observers to operate on a disturbing de facto presumption of guilt; the most recent example is the high-profile trial of Amanda Knox.  Yet the continental approach has contributed to the making of a significantly more humane criminal justice system than ours.  Moreover, the continental approach is better suited to cope with the rise of new forms of scientific investigation.  The Article pleads for a shift away from the American culture of rights for the innocent toward a greater concern with continental-style rights for the guilty.

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External Forces, Internal Dynamics: Foreign Legal Actors and Their Impact on Domestic Affairs

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This Review examines the influence of foreign legal actors on jurisdictions that are not their own.  Rachel Stern, a scholar of China, reflects on this point in her groundbreaking book published in 2013.  In her penultimate chapter, Stern discusses how such foreign legal actors wield influence in China because of their presence on the ground.  Building off of Stern’s research, this Review proceeds to ask whether foreign legal actors can influence a domestic environment when that environment prohibits them from permanently working there.  The analysis below will suggest so, arguing that the forces of globalization can enable foreign legal actors to impact even a market that keeps its legal-services borders closed.

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Seduction by Technology: Why Consumers Opt Out of Privacy by Buying into the Internet of Things

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The Internet of Things (IoT) is an ever-growing system of personal technology devices that communicate with each other.  In so communicating, these devices relay information that is extremely personal to each individual user and is capable of doing great harm.  Despite the potential for harm, consumers continue to purchase these devices.  By doing so, they trade away their long-term privacy for the short-term benefit of using a device.paragraph

One possible reason as to why consumers are willing to trade away their privacy is because they are unaware of the amount of privacy being lost.  But even if consumers were made aware of the loss, they would still engage in privacy-sacrificing behaviors.  Behavioral economists have proven that people will both underestimate their risk of harm and prefer a short-term gain to a long-term risk.  These two theories help to explain why consumers are willing to trade away their privacy by purchasing IoT devices and should therefore be considered when legislators and policymakers begin regulating the Internet of Things.

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Expert Testimony and the Quest for Reliability: The Case for a Methodology Questionnaire

By | TLR Vol. 94-5 | No Comments

Although Daubert and Kumho Tire provide some guidance regarding how judges should evaluate expert testimony for reliability, they leave too much to the discretion of the judge. Under the present system, the reliability determination remains highly dependent on the judge’s own views of what is methodologically important—an opinion that may be no more qualified than the opinion of the common juror. Consequently, Marta Chlistunoff argues that Daubert and other procedural tools currently available to judges alone fail to adequately test the reliability of expert testimony because they do not direct judges’ focus to an expert’s methodology—or at least not the correct aspects of that methodology—and fail to ensure that the judge has adequate information to accurately assess reliability. This Note instead contends that the legal community should adopt a mandatory disclosure list—a “methodology questionnaire”—which would highlight potential areas of concern and subjectivity in the subject expert’s methodology. This methodology questionnaire would serve to supplement mechanisms currently in place and to maximize the likelihood that judges and juries would be able to scrutinize expert testimony without being unduly swayed by the “expert” label or by the complicated nature of the testimony at issue.
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Redundancy: When Law Repeats Itself

By | TLR Vol. 94-4 | No Comments

In this Article, Professor John M. Golden explores the puzzle of legal anti-redundancy and examines how legal doctrine can be designed to obtain important benefits from redundancy while substantially mitigating anti-redundancy concerns.  He analyzes redundancy and anti-redundancy as general legal phenomena, illustrates their interaction through detailed examples from patent law, and suggests how redundancy and anti-redundancy might be reconciled through intelligent legal design.

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The Council and the Court: Law and Politics in the Rise of the International Criminal Court

By | TLR Vol. 94-4 | No Comments

In his recent book Rough Justice: The International Criminal Court in a World of Power Politics, David Bosco provides an accessible analysis of the International Criminal Court, its evolving role in international law, and its relationship to power politics.  In this Book Review, Professors David Kaye and Kal Raustiala further examine the power politics surrounding the court’s establishment and modern operation and then propose potential solutions to protect the court and promote cooperation between states and the court itself.

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The Writing Is on the Wall: How the Briseno Factors Create an Unacceptable Risk of Executing Persons with Intellectual Disability

By | TLR Vol. 94-4 | No Comments

In the Texas Court of Criminal Appeals’ 2004 decision Ex parte Briseno, the court laid out a new set of factors to determine if a capital defendant is intellectually disabled and thus ineligible for execution under the Supreme Court’s decision in Atkins v. Virginia.  In this Note, Hensleigh Crowell reviews trial court evidence and prevailing standards for determining intellectual disability and concludes that the Briseno factors create an unacceptablerisk of executing defendants with intellectual disability in direct contradiction with the Supreme Court’s directive in Atkins.

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Protecting North America’s Past: The Current (and Ineffective) Laws Preventing the Illicit Trade of Mexican Pre-Columbian Antiquities and How We Can Improve Them

By | TLR Vol. 94-4 | No Comments

In this Note, Ryan Phelps explores the illicit trade of pre-Columbian antiquities between Mexico and the United States. He suggests that the current laws and recourses available that protect and deter the theft of Mexican pre-Columbian antiquities and these artifacts’ illegal import into the United States are ineffective at their goal of reducing these types of crime, and instead recommends a policy that focuses on the active preservation of these antiquities before they are looted in the first place.

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No Room for the Poor—The Blight of Eminent Domain on America’s Lowest Economic Classes

By | SA Vol. 94 | No Comments

“Blight” is the label used by U.S. law to describe property that is considered to be dilapidated or injurious to public health. In much of the U.S., it is easier to use eminent domain to condemn a property if it is deemed “blighted.” This Note examines the negative effects that condemning such properties can have on residents of “blighted” areas and proposes some changes to the law that would better protect these residents from the costs associated with condemnation.

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Blackhorse Down: Do NFL Teams Need Trademark Protection?

By | SA Vol. 94 | No Comments

In this Note, William Mason analyzes the economic effects of the Trademark Trial and Appeal Board’s decision to revoke federal trademark protection from the Washington Redskins and questions whether those effects are sufficient to force a change to the team’s name.  He argues that the protections and incentives provided by the NFL and collective bargaining will significantly damper any economic effect the Board’s decision may have, and instead suggests alternative areas where social and economic pressure may prove more successful.

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News

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.

Volume 94 Editorial Board

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The Texas Law Review is proud and excited to announce the Editorial Board for Volume 94. The members of Volume 93 are happy to pass the torch to such a fantastic group of people. View the Volume 94 Editorial board Masthead.

TLR Alumni Score the Top Grades on the Texas Bar Exam

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The Texas Law Review would like to congratulate two of its Volume 92 alumni for achieving the top two scores on the July 2014 Texas Bar Exam. Jamie Yarbrough, who served as the Research Editor on Volume 92′s editorial board, had the top score followed closely by Michael Kelso, an Articles Editor on Volume 92′s editorial board. Mr. Yarbrough is currently working as an associate for Baker Botts in Houston while Mr. Kelso is clerking for Judge Carolyn King of the Fifth Circuit Court of Appeals.

Congratulations Volume 93 New Members!

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The Texas Law Review is proud to announce its volume 93 membership!  Congratulations to all our new members, and welcome to TLR! The Masthead is now available for download.