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.

The Functions of Ethical Originalism

Richard Primus

88 Texas L. Rev. See Also 79

PDF Document

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.

There‘s Still Hope: Life After Giles v. California

Cheryl Hanna

87 Texas L. Rev. See Also 79

PDF Document

In this comment, Professor Hanna explains why she believes Professor Lininger’s article is so important: it develops a test for getting around the problem created by the Supreme Court for the prosecution of domestic violence murders.

The problem created in Giles is that prosecutors are required to prove that the defendant had the specific intent to silence his victim when he killed her, before allowing forfeiture of confrontation rights.  However, Professor Lininger’s article grabs onto language in the majority and concurring opinions suggesting that lower courts are permitted to infer that intent, and develops three per se rules for when it is appropriate.  She believes that since this test focuses on the broader context of domestic violence abuse, as opposed to focusing on just the moment the murder occurred, it should help prosecutions of domestic abusers.

She also focuses on the question of whether advocates for the victims of domestic abuse should emphasize the gender bias in these crimes, showing how the law treats women unfairly in this context, or whether they should de-emphasize it in order to win over the likes of Justice Scalia.  After discussing the issue, she concludes that trying to win over Justice Scalia is pointless because he is too committed to originalism in the Confrontation Clause context to be affected either way by the disparate impact this has on women.

The Meaning of “Intellectual Privacy”

Christopher Slobogin

87 Texas L. Rev. See Also 25

PDF Document

In his comment to Intellectual Privacy by Neil Richards, Professor Slobogin praises Richards for his scholarship, but identifies two pragmatic problems with Richards’s argument.

The first is a problem of classification.  Slobogin argues that what Richards terms “intellectual records,” which includes lists of books one owns and websites one visits, often reveal little more about us than conclusions that can be drawn from data about our purchases.  He finds the distinction Richards draws to be incomplete.  It is not clear to Slobogin why data about purchases do not merit extra protection when, by piecing together large numbers of otherwise innocuous data on purchases, one may reach the same conclusions as if one had access to intellectual records.  Slobogin also questions the role of the First Amendment in privacy protection when Fourth Amendment doctrine and scholarship address, if not solve, many of the problems Richards identifies.

Giles v. California: Is Justice Scalia Hostile to Battered Women?

G. Kristian Miccio

87 Texas L. Rev. See Also 93

PDF Document

In this Comment to Professor Lininger’s article, Professor Miccio focuses on two important moral dilemmas highlighted by the Court’s decision in Giles v. California: “(1) whether a search for truth should be sacrificed to our notions of Due Process; and (2) whether Giles’s protection of the accused is premised on beliefs tainted by sexism.”

She argues that the Court’s opinions in GilesDavis v. Washington, and Town of Castle Rock, Colo. v. Gonzalez, which were all written by Justice Scalia, reflect Scalia’s contempt for battered women.  In Miccio’s opinion, Scalia’s formalistic legal reasoning in this area of the law has been inconsistent, while his misogynistic view of women has been undeniably constant.

A Comment on “Misbehavior and Mistake in Bankruptcy Mortgage Claims”

Angela Littwin

87 Texas L. Rev. See Also 1

PDF Document

In this Comment to Professor Porter’s article, Professor Littwin discusses the disturbing results of Porter’s investigation into the mortgage-servicing industry and the mortgagee-filed proofs of claim process in bankruptcy.  Littwin also evaluates Porter’s suggestions for improving the process.

She considers their probability of success by focusing on the likelihood of adoption and effectiveness upon institution.  Littwin’s Comment concludes with a discussion of the proposed elimination of the exemption currently preventing “cram down” of primary-residence home mortgages in bankruptcy.

In Defense of Giles: A Response to Professor Lininger

James F. Flanagan

87 Texas L. Rev. See Also 67

PDF Document

In this comment, Professor Flanagan explains that he disagrees with Professor Lininger’s approach to the forfeiture issue, and in particular opposes the use of bright-line tests to satisfy Giles’ inferred intent standard.

Professor Flanagan argues that the Supreme Court correctly defined the limits of the forfeiture by wrongdoing doctrine in Giles, noting that history and precedent both support having the intent requirement, even if you are not an originalist.  Furthermore, Professor Flanagan believes that Giles will probably not have as detrimental an effect on domestic violence prosecutions as some believe, and that this claim is premature; there are still many victim statements that are capable of admission despite the renewed approach to the Confrontation Clause.  Furthermore, because there cannot be one law for domestic violence cases, and another for all other types of crimes, Professor Flanagan explains his worry that zeal for convicting domestic abusers will undermine this important Constitutional right.  Finally, he examines Professor Lininger’s proposals in detail, suggesting they are not necessary.

Professor Katherine Porter and Proofs of Claims by Mortgage Servicers

O. Max Gardner

87 Texas L. Rev. See Also 9

PDF Document

A consumer bankruptcy attorney with significant experience dealing with the claims of mortgage servicers, O. Max Gardner III believes that Professor Porter’s study on such claims arose out of mounting concern on the part of bankruptcy courts “about the institutional accuracy and truthfulness of mortgage servicers’ claims.”  He applauds her work, noting that Professor Porter’s study will enable more attorneys to evaluate such claims with scrutiny.  However, while acknowledging this as a significant step in the right direction, Gardner calls for continued work in uncovering all the misconduct of mortgage servicers.