Keeping Republics Republican

Rob Atkinson

88 Texas L. Rev. See Also 235

PDF Document

In his response to Prof. Brian Galle, Prof. Rob Atkinson offers a “republican philanthropy” perspective to Prof. Galle’s “charitable charity” approach. First, Prof. Atkinson helpfully places Prof. Galle’s thesis in the larger context of charity scholarship; he elucidates the history and differences between nonprofit and for-profit charitable institutions, comparing and contrasting them with governmental institutions. Prof. Atkinson argues that Prof. Galle’s approach makes a valuable contribution to rebutting the for-profit charity assumption that nonprofits are inefficient; however, he believes that governmental institutions are in the best position to provide charitable services. Using the University of Texas School of Law as an example, he demonstrates that republican philanthropies—institutions that are neither for-profit nor traditional “charitable charities”—sponsor important public goods like this debate itself.

Patent Remedies and Practical Reason

Thomas F. Cotter

88 Texas L. Rev. See Also 125

PDF Document

In this Response, Professor Thomas Cotter compares his concept of “practical reason,” which emphasizes the need for choice, deliberation, and communication in the face of radical uncertainty and conflicting norms, with Golden’s five principles for patent remedies.  Cotter argues that the application of Golden’s principles would be grounded in a form of practical reason; both methodologies take a nondogmatic approach to making rational judgments under conditions of uncertainty.  But Cotter also offers two critiques of Golden: first, Golden sometimes seems to betray a Platonic longing for something more determinate than practical reason; and second, Cotter disagrees with Golden’s analysis on specific issues within the field of patent remedies.

The Voting Rights Act Through the Justices‘ Eyes: NAMUDNO and Beyond

Joshua A. Douglas

88 Texas L. Rev. See Also 1

PDF Document

In this Essay, Douglas tells us that “[t]he most surprising action from the Supreme Court’s latest term may be what it did not do:  strike down Section 5 of the Voting Rights Act . . . as unconstitutional.” Douglas explores the Court’s recent decision in Northwest Austin Municipal Utility District Number One v. Holder (NAMUDNO), in which the Justices managed to avoid invalidating Congress’s reauthorization of the “preclearance” provision of the Voting Rights Act (which requires preapproval for changes to voting procedures in covered jurisdictions). This Essay explores the reasons behind the Court’s 8–1 opinion, which resolved the issue on narrow statutory grounds, and what the comments in dicta by various Justices may mean for future election law cases.

Douglas first discusses the Court’s statutory interpretation and constitutional avoidance approach in NAMUDNO.  He then explains how each current Justice generally views the Voting Rights Act (VRA) by analyzing their voting patterns in previous VRA cases.  He concludes that the Court’s recent approach in NAMUDNOand other election law cases reveals a trend toward “strategic compromise” among the Justices in this area. Over the past few years, Douglas argues, Justices on the Court have “compromised their usual positions in election law cases in favor of a strategic and incremental approach to effectuate their long-term goals (or ward off starker and less favorable results).”

This Essay includes an Appendix — a table of VRA cases and individual Justices’ voting records in them used by the author in his analysis, which may be useful to those seeking more in-depth information about the Supreme Court’s jurisprudence concerning the Voting Rights Act.

Executions without Legitimacy? Why the ALI Action Matters

Franklin E. Zimring

88 Texas L. Rev. See Also 257

PDF Document

Prof. Zimring adds to the discussion Profs. Steiker and Steiker began on the role the American Law Institute (ALI) and the death penalty provisions of the Model Penal Code have played in the death penalty dispute. Specifically, he suggests “three lessons from the half-century ALI story that are of ironic importance.” The first lesson is that preoccupation with political expediency can exact a high cost in the law reform process. The second is that the the withdrawal of the death penalty provisions from the Model Penal Code by the ALI is as effective at undermining the death penalty as an abolitionist’s stance would be. The last lesson is that the sustainability of capital punishment requires not just majority public support but also legal intellectual respectability, which is now lacking.

Making Adequacy More Adequate

David Marcus

88 Texas L. Rev. See Also 137

PDF Document

In this piece, Professor Marcus proposes that Professor Tidmarsh’s adequacy metric would serve better as a standard than a rule.  Marcus praises the metric as a convincing and stimulating game-changer, but he also highlights a potential criticism: the adequacy requirement, foundational as it is, should not be reduced to any single test, even one as sensible as Tidmarsh’s.  To prove his point, Marcus examines two categories of cases, one for which a strict application of the “do no harm” test would preclude arguably desirable class litigation, and one for which his test would permit unattractive distributional inequities among class members.

Notice and Patent Remedies

Herbert Hovenkamp

88 Texas L. Rev. See Also 221

PDF Document

Prof. Hovenkamp evaluates Prof. Golden’s proposals in Principles for Patent Remedies, arguing for the addition of an additional principle: notice. The author writes, “remedies must be administered so as to encourage optimal and timely private disclosure as well as optimal, cost-justified private search.”

Like other property rights regimes, patent law should have an effective system for giving notice and for providing incentives to respond to notice once given. Analogizing to the real property system, Hovenkamp describes several important principles of notice systems. Such systems generally require collaboration by government officials and private-market participants. Moreover, the duty to provide or obtain notice ought to be placed on the party that can do so at the lowest cost. In line with this reasoning, Hovenkamp writes that when recording is cheaper than searching, the burden should be placed on the recorder. And where interests are not recorded, the owner’s duty to provide alternative kinds of notice is expanded.

With these principles of notice in hand, Hovenkamp turns to the patent-recording system. He finds that it is not nearly as reliable as the real property system. Although highly technical rules for drafting patent claims exist, the language of such claims lacks the clarity of deed descriptions. In addition, patent searches are not only more costly but highly unreliable.

Some of these problems are of course inherent to the patent system. But, aruges Hovenkamp, patent law should take a lesson from real property. Where the notice system breaks down, patent law should impose a duty upon owners to compensate by providing effective notice. In light of this, the author discusses the “late claim” feature of patent law, using the Rambus case as an example of its flaws and how to fix it. After addressing some other patent-damages issues related to notice, Hovenkamp concludes that as patents have come to resemble a kind of property rather than a monopoly—a good thing—it ought to be treated as such. The notice system of patent law, then, is “an essential policy lever that can aid a court in determining the remedy most consistent with the innovation-furthering goals of the patent system.”

The Power of Warm Glow

Usha Rodrigues

88 Texas L. Rev. See Also 149

PDF Document

In this Response, Professor Rodrigues states that while she largely agrees Professor Galle’s argument that nonprofit charities cannot be reduced to their tax-exempt status, she disagrees with him on two points.  First, Rodrigues argues that Galle overstates the problem posed by for-profit firms offering charitable services.  Second, she insists that Galle understates the power of the “warm glow” in the nonprofit organization.

Comparative Originalism

David Fontana

88 Texas L. Rev. See Also 189

PDF Document

In response to Prof. Greene’s article, Prof. Fontana discusses some complications of Prof. Greene’s arguments. Prof. Fontana argues that comparing the United States with Canada and Australia involves comparing quite different countries, because the Canadian and Australian constitutions reorganized preexisting institutions, whereas the United States had more of a nation-creating, revolutionary constitution. Other countries that arose out of more revolutionary events, such as certain post-colonial African and Latin American nations, have also tended to feature originalist arguments. Prof. Fontana argues that, when the nation predates the creation of a constitution, key cultural and political understandings also predate the constitution, thereby diminishing the importance of originalism.

The Challenges of Fiduciary Administration

Glen Staszewski

88 Texas L. Rev. See Also 155

PDF Document

In his Response to Professor Criddle’s proposal of a fiduciary model of popular representation in administrative regulation, Professor Staszewski generally agrees with Criddle’s skepticism of the presidential-control model but identifies four challenges that scholars must overcome when developing alternative theories to the presidential-control model of administrative regulation.  First, he argues that scholars should account for the importance of elections.  Second, they should account for the proper role of political preferences.  Third, they must develop oversight mechanisms apart from judicial review that are not prohibitively expensive.  Finally, they should seek to reduce the fear of uncertainty accompanying the abandonment of the presidential-control model.

How Embattled Are U.S. CEOs?

Jens Dammann

88 Texas L. Rev. See Also 201

PDF Document

In his Response to Professors Kahan and Rocks, Professor Damman cautions against blind acceptance of the proposition that corporate CEO’s are losing power vis-à-vis shareholders. First, he notes that questions of power are complex and difficult to measure. Second, he questions Kahan and Rock’s estimations of the impact of statutory and privately adopted rules. Finally, he critiques Kahan and Rock’s detection of a long-term trend in losses of power for executives.