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.