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.
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.
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.
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.
Crowell’s Note attempts to identify the problems created by discriminatory housing bars based on criminal convictions, the various reform efforts currently at work, and the potential inadequacies of the reforms based on the needs of those most at risk for recidivism. To that end, the Note begins by discussing the prevalence of housing discrimination in both the private and public housing sectors, before pulling from social science to demonstrate the effects of unstable housing or homelessness on individuals just released from jail or prison. The Note then outlinesthe various reform strategies that advocates are using to challenge these bars and discusses both the positive effects of these reforms and their failure to assist those most in need of relief, before finally attempting to identify potential solutions to bridge the gap between the limits of the ongoing reform efforts and the need to provide housing for individuals who have just been released back into society.
The disappearance of the American civil trial has paved the way for a new order of dispute resolution—one marked by alternatives such as arbitration, mediation, and, above all, settlement. Nowhere has that shift been seen more than in tort cases, where today less than 1% of all mass tort cases proceed to trial. As a consequence of the vast majority of mass tort cases being settled by agreement between the parties, allocation of the settlement proceeds has become a massive undertaking. When one or a small number of claimants settle with a defendant, it is relatively easy to determine how the proceeds of the settlement are to be split; it is far more difficult when a defendant establishes, for example, a $4.85 billion settlement fund for almost 50,000 claimants, as Merck & Co. did to settle nationwide multi-district litigation (MDL) over the drug Vioxx. As can be imagined, those claimants took Vioxx for various periods of time; had drastically diverse medical histories, employment opportunities, and family situations; and exhibited numerous other differences. To account for such factors, the individual settlement awards were based on the calculation of “points” pursuant to formulas, grids, and matrices. Such an allocation method, known as “damage averaging,” provides an efficient, objective, and equitable (both horizontally and vertically) system for apportioning settlement proceeds among claimants; however, it may inadequately compensate those claims which our legal system should value most—the high-value claims of the most seriously injured claimants.
In this Note, Kishinevsky further defines and explains damage averaging as well as investigates why high-value claims are likely undervalued under such a system, while, conversely, low-value claims are typically overvalued. He then explains why damage averaging use has greatly expanded in mass tort settlements and examine the benefits and negatives of a damage averaging allocation method, before discussing alternatives to damage averaging and presenting an argument for why damage averaging is the best current arrangement for the distribution of settlement proceeds. Finally, he recommends solutions to ensure that high-value claims are accurately valued—proposals that have the potential to reduce (or even eliminate) undervaluation of such claims and meaningfully improve the outcomes of damage-averaging apportionment.
Schleicher’s Article addresses the consequences of second-order elections—voting occuring in state and local elections that merely reflects voter preferences about the President and Congress with little or no variation based on the performance or promises of state officeholders and candidates—for federalism doctrine, policy making, and theory. First, it argues that virtually all of the ends of federalism—responsiveness, respect for diversity, laboratories of democracy, variation to permit foot voting, and so forth—are premised not only on state governments having authority but also on the success of state democracy at reflecting local needs and wants. Second, it shows that proponents of greater federalism focus largely on questions of state authority rather than the quality of state democracy, leading to proposals and doctrines that frustrate federalism’s normative goals. Third, the Article sketches several new paths for proponents of federalism that aim at reform of state government and state elections rather than changes to federal policy. Lastly, the Article shows that research on second-order elections reveals the emptiness of several prominent theories about federalism, particularly work about the “political safeguards of federalism.”
Koppelman reviews Kent Greenawalt’s book, Exemptions: Necessary, Justified, or Misguided?, which aims “to explore the complexity of many concerns about [religious] exemptions and implicitly encourage those on opposite sides of particular controversies to recognize, and perhaps even acknowledge, that competing considerations do carry some weight.” Koppelman calls the book “deliberately unhelpful with respect to broader questions that weigh on the minds of many,” namely, “[w]hy is it fair, as a general matter, to single out religion for special treatment,” and “what general principles should or courts follow if they are going to devise exemptions on an ad hoc basis?” As a result, he calls the book “an important but incomplete defense of exemptions,” and his review thus offers “an account of the missing principles inferred from what Greenawalt does say.” Koppelman starts by examining Greenawalt’s specific arguments for exemptions, before taking up the question of whether it is fair to give religion special treatment, and concludes by considering the problem of how to determine substantial burdens on religion.
Koski reviews Catherine J. Ross’s book, Lessons in Censorship: How Schools and Courts Subvert Students’ First Amendment Rights, which argues that “ignorance about, indifference to, and disdain for the speech rights of students permeates society” and leads to “rampant constitutional violations that plague our schools.” Koski says the book is not only “a comprehensive and colorfully written treatment of the Court’s student speech jurisprudence, but it also reminds us that we must remain vigilant in our protection of free speech in the classroom and the courtroom.” He begins by summarizing the book and focusing on its contributions to First Amendment analysis, before probing Ross’s argument that “protection of all pure student speech, even that which is hurtful, insubordinate, and offensive, is essential to the school’s duty of modeling and transmitting the values of citizenship.” Koski generally assents to Ross’s arguments, but concludes in favor of adding “schoolwide practices aimed at creating a culture of positive behavior, tolerance, and respect through [schoolwide positive behavior intervention and supports, restorative practices], and social emotional learning.”
In all of the debates surrounding birthright citizenship, it appears that a small, yet critical, piece of the Citizenship Clause has been overlooked. The Clause reads that “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” Yet, few courts have paused to consider what the phrase “in the United States” means. This Note argues that, from an Originalist, historical perspective, all of the recent federal appellate cases interpreting the phrase “in the United States” for purposes of the Fourteenth Amendment have been incorrectly decided, and that if one wishes to stay true to the framer’s intent, the correct interpretation of that phrase is “in the dominion of the United States.” In other words, the framers of the Fourteenth Amendment would have considered anywhere that the United States exercises sovereignty “in the United States,” not just the fifty states and the District of Columbia.
This Note examines the current circuit split in the level of immunity afforded to international organizations under the International Organizations Immunities Act of 1945 (IOIA). Under the IOIA, designated international organizations may receive “the same immunity from suit and every form of judicial process as is enjoyed by foreign governments.” However, the Third Circuit and D.C. Circuit disagree on whether the IOIA intended to incorporate subsequent changes in the law of foreign sovereign immunity. Accordingly, international organizations may be entitled to either the “virtually absolute immunity” afforded to foreign states in 1945 or the restrictive immunity afforded to foreign states today. This Note argues that the IOIA, properly read, does not provide international organizations with absolute immunity. Moreover, applying a theory of restrictive immunity under the IOIA would benefit international organizations through lower transaction costs, increased organizational accountability, and improved public perception. Finally, the Note provides a comparative analysis of the various approaches taken by Austria, Italy, and the United Kingdom regarding international organization immunity.
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.
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.
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.
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.