VOLUME 88, ISSUE 6  |  May 2010

 

Articles

The Incentives Matrix: The Comparative Effectiveness of Rewards, Liabilities, Duties, and Protections for Reporting Illegality
Profs. Yuval Feldman & Orly Lobel

88 Texas L. Rev. 1151 (2010)

Social enforcement—relying on individuals to report misconduct—is becoming a key feature of regulatory policy. Despite the clear policy benefits that flow from understanding the factors that facilitate social enforcement, the field remains largely understudied. Using a series of experimental surveys of a representative panel of over 2,000 employees, Professors Yuval Feldman and Orly Lobel compare the effect of different regulatory mechanisms—monetary rewards, protective rights, positive obligations, and liabilities—on individual motivation and behavior.
Keep Charity Charitable
Prof. Brian Galle

88 Texas L. Rev. 1213 (2010)

In this Article, Professor Brian Galle responds to recent claims, most prominently by Anup Malani and Eric Posner, that much of the work of the charitable sector should be farmed out to for-profit firms. For-profit firms are said to be more efficient because they can offer higher-powered incentives to cut costs. Professor Galle argues, however, that because of the high costs of monitoring and the presence of externalities, low-powered incentives are preferable for firms that produce public goods. Further, allowing some for-profit firms to receive charitable subsidies would raise the cost of producing those goods in government or other firms because it would diminish the “warm glow” workers enjoy from being recognized as self-sacrificing.
The Taking/Taxing Taxonomy
Prof. Amnon Lehavi

88 Texas L. Rev. 1235 (2010)

Takings jurisprudence is engaged in a constant paradox. It is conventionally portrayed as chaotic and muddy, and yet attempts by the judiciary to create some sense of order in it by delineating this field into distinctive categories that apply to each a different set of rules are often criticized as analytically incoherent or normatively indefensible. In this Article, Professor Amnon Lehavi offers an innovative approach to the taxonomic enterprise in takings law by examining what is probably its starkest and most entrenched division: that between taking and taxing.
 

Book Reviews

Some Moving Parts of Jurisprudence
Prof. Kevin Toh

88 Texas L. Rev. 1283 (2010)

Professor Kevin Toh reviews Joseph Raz’s Between Authority and Interpretation: On the Theory of Law and Practical Reason. Rather than selecting pieces of Raz’s work to dissect, Professor Toh takes a more holistic look at the common assumptions underlying the book’s collection of essays. In sum, Professor Toh criticizes Raz’s departure from the benchmark of Hart’s legal theory.
 

Notes

Post-9/11 Anti-terrorism Policy Regarding Noncitizens and the Constitutional Idea of Equal Protection Under the Laws
Daniel H. Cohen

88 Texas L. Rev. 1323 (2010)

Many of the policy changes that were made in response to the September 11th attacks affected non-citizens far more adversely than they did citizens. In this Note, Cohen examines post-September 11th law as it pertains to non-citizens, and comments on what these laws—and their reception in the legal world—say about the constitutional principle of equal protection. He argues that the post-9/11-non-citizen experience casts a negative light on equal protection norms, showing that the notion of equality might not be as important an ideal as it is often claimed to be.
The Conman and the Sheriff: SEC Jurisdiction and the Role of Offshore Financial Centers in Modern Securities Fraud
Nick S. Dhesi

88 Texas L. Rev. 1345 (2010)

Over the last five years, a carousel of large, international frauds by well-known and well-regarded financiers undermined the integrity of global securities markets and international cooperation in market enforcement. In this Note, Dhesi advocates an expansion of SEC authority to place a substantial hurdle in the way of these conmen in the hopes of stripping them of a primary tool—the use of offshore financial centers (OFCs). To prevent conmen from avoiding SEC jurisdiction and capitalizing on self-interested local regulation in OFCs, Dhesi encourages Congress to grant the Commission the authority to initiate investigations on foreign soil, when the Commission perceives a substantial threat to investors in the United States, with prior consent from foreign regulators.
A Comparative “Hard Look” at Chevron: What the United Kingdom and Australia Reveal About American Administrative Law
Robert C. Dolehide

88 Texas L. Rev. 1381 (2010)

In this Note, Dolehide explores the differences between American administrative law and that of the United Kingdom and Australia. In American administrative law, courts defer to agencies on questions of law, where judges have expertise, but undertake strict review of policy determinations, where agencies have more expertise. Judges in the United Kingdom and Australia, on the other hand, give no deference to administrative interpretations of law but grant substantial deference on policy decisions. Dolehide suggests that one important factor underlying this dichotomy is that the emergence of the administrative state has generated more significant institutional tensions in the United States than in the parliamentary systems of United Kingdom and Australia. After comparing these distinct systems, Dolehide examines what the comparative analysis suggests about the future of American deference doctrines.

 

Volume 89 Masthead

Texas Law Review is proud to welcome the Volume 89 New Members!  Our new masthead is available here.

Volume 89 Editorial Board

Texas Law Review is proud to announce the selection of the Volume 89 Editorial Board. The masthead is available here.

2010 Symposium: Feb. 4-6

TLR's annual Symposium recently took place February 4-6 at the University of Texas School of Law. This year's topic was: Law at the Intersection of National Security, Privacy, and Technology. Click here to see press coverage and listen to the panel discussions online.

An Online Companion to Texas Law Review
 
The Functions of Ethical Originalism
Prof. Richard Primus

Responding to Prof. Jamal Greene, On the Origins of Originalism
Wed, 2010-05-26

In his Response to Professor Greene’s Article, Professor Primus contends that the stakes of originalist argument can go well beyond any particular case in which originalist arguments are made. He identifies three functions of ethical-originalist argument that go beyond the realm of deciding particular cases. First, originalist argument can establish the content of American history as a value in itself. Second, it can help to legitimate the constitutional system by creating an affinity between the present generation and the generation of heroic constitution makers. And third, it can establish a particular speaker as the authoritative bearer of the American constitutional tradition, thus empowering him to arbitrate questions in the name of that tradition.

Nixon's Revenge
Prof. Michael J. Gerhardt

Responding to Prof. Laurent Sacharoff, Former Presidents and Executive Privilege
Tue, 2010-05-25

In his Response to Professor Sacharoff’s Article, Professor Gerhardt critiques the use of sources, contending that Professor Sacharoff reads too much into the “antimonarchical premises” of the Constitution and too little into other sources. Gerhardt suggests alternatives to Sacharoff’s reading of the structure and context of the Constitution, as well as precedents and analogies that might inform our judgment about the extent to which former presidents might or should have any control over executive privilege.

Procedural Adequacy
Prof. Elizabeth Chamblee Burch

Responding to Prof. Jay Tidmarsh, Rethinking Adequacy of Representation
Tue, 2010-05-25

In her Response to Professor Tidmarsh’s Article articulating the “do no harm” principle, Professor Burch explores Tidmarsh’s theory from a procedural legitimacy perspective. She considers the assumption that in any given class action both attorneys and class representatives tend to act as self-interested homo economicus. She argues that (1) tailoring adequacy to egocentric behavior by providing a floor to minimally acceptable conduct creates a troubling anchor that is at odds with agency and ethical principles; and (2) this proposed change, particularly as it tolerates collusion and unequal treatment among class members, may adversely impact perceptions of procedural justice and class-action legitimacy.

Rewriting the Roberts Court’s Law of Treaties
Prof. John T. Parry

Responding to Prof. Ernest A. Young, Treaties as "Part of Our Law"
Tue, 2010-05-25

In his Response to Professor Young’s article, Professor Parry evaluates Young’s assertion that he is defending Medellín even as he pointedly fails to endorse the Court’s reasoning. He also critiques areas in which he finds Young’s reasoning incomplete: his argument that federal courts should give no deference to a foreign or international tribunal’s treaty interpretation; his broad assertion that some treaties are non-self-executing because of vague treaty language; and his doctrinal conclusion that the Supremacy Clause does not require self-execution.

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