Making Adequacy More Adequate

David Marcus

88 Texas L. Rev. See Also 137

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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

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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

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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

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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

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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

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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.

The Functions of Ethical Originalism

Richard Primus

88 Texas L. Rev. See Also 79

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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.

Intellectual Liability in Context

John M. Golden

88 Texas L. Rev. See Also 211

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Professor Golden’s response to Professor Crane highlights the limitations on Prof. Crane’s thesis, notably the difficulties that accompany an attempt to precisely calculate awards sufficient to catalyze creative activity both in the short-term and long-term. Professor Golden also takes issue with Professor Crane’s arguments for permanent injunctions to nonpracticing patentees and his defense of private-bargaining as a method of circumventing questions of the court’s institutional competence in patent-rate setting.

Nixon‘s Revenge

Michael J. Gerhardt

88 Texas L. Rev. See Also 43

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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.

Optimal Tax Treaty Administrative Guidance

Craig M. Boise

88 Texas L. Rev. See Also 175

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In his Response to Professor Kirsch, Professor Boise critiques the assertion that administrative regulations are superior to technical explanations in interpreting tax treaties. He explains three imperatives that any interpretation regime must meet (authoritativeness, comprehensiveness, and timeliness) before offering other alternatives on optimal treaty guidance.