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.

Procedural Adequacy

Elizabeth Chamblee Burch

88 Texas L. Rev. See Also 55

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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.

Patent Valuation Theory and the Economics of Improvement

Amy L. Landers

88 Texas L. Rev. See Also 163

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In her response to Professor Golden, Professor Landers identifies three threads that underlie the debate on patent remedies.  First, patent value may be difficult to define because of certain indeterminacies.  Second, economic and technological contingencies may distort the amounts paid for patents.  Third, principles of adaptation and implementation might bring the field to a theoretical consensus about patent value.  After analyzing Prof. Golden’s principles in the context of each thread, Prof. Landers proposes that, in order to bridge the differences in current theoretical viewpoints, the explicit addition of the economics of improvement is necessary.

Rewriting the Roberts Court’s Law of Treaties

John T. Parry

88 Texas L. Rev. See Also 65

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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.

He Went Back, Jack, and Did It Again: Thoughts on Retributivism, Recidivism as Omission, and Notice

Guha Krishnamurthi

88 Texas L. Rev. See Also 91

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Responding to Professor Lee, Guha Krishnamurthi argues that Lee’s objections to the Bad Character, Notice, and Disobedience accounts are unpersuasive.  As a result, Krishnamurthi argues that Lee’s own account, Recidivism as Omission, does not have any of the advantages over the competing accounts that Lee claims it has.  He argues that there are further detractions to Recidivism as Omission that make it implausible and possibly redundant.  Finally, he contends that the Notice account best explains the intuition that the recidivist deserves more punishment.

Some Corrections and Pushbacks on Grand Jury Rights: A Response to Professor Wildenthal

Sarah E. Agudo

88 Texas L. Rev. See Also 39

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In this piece, Sarah Agudo responds to Professor Wildenthal’s criticism of a prior Texas Law Review article authored by her and Professor Steven G. Calabresi discussing, among more than 100 other individual rights, grand jury rights.  Agudo responds to several of Professor Wildenthal’s critiques of her methodology, while noting that some of his suggestions provide useful areas in which to expand the research on the state constitutional history of grand juries in future publications.

The Contextualization of Tort Law

Richard A. Epstein

88 Texas L. Rev. See Also 105

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In response to Professors Goldberg and Zipursky’s article, Professor Richard Epstein offers an instrumentalist response.  Although instrumentalism distances itself from notions of individual wrongs—focusing instead on tort law as a tool of social control with loss prevention at its heart—Prof. Epstein argues that there are good instrumental reasons for directing attention to the doer–victim relationship.  In addition, he argues that Goldberg and Zipursky have offered a theory short on facts: they speak of negligence, strict liability, and legal and moral wrongs, but they do not give any instances of the particular conduct to which these norms apply.

Their lack of fact density explains why they are unable to come up with a single account of tort law that covers all of the diverse elements that fall within its scope.  Prof. Epstein disaggregates the various elements of different torts from one another in order to retell the entire story in a coherent fashion.