Control Killings

Deborah Tuerkheimer

87 Texas L. Rev. See Also 117

PDF Document

In this comment, Professor Tuerkheimer advances the notion of “control killings,” or viewing domestic violence homicide as the final act in a pattern of various forms of abusive conduct.

She begins by noting that the Supreme Court evinced a fairly sophisticated understanding of domestic violence as a pattern of conduct in Giles, but that it was still wanting in some respects.  The Court overlooks the centrality of power and control to the batterer’s design, and so fails to capture the true essence of battering.  Next, she focuses on Professor Lininger’s third per se rule—inferring intent to silence a victim  from a history of abuse and isolation.  This, she says, raises the complex issues that need to be addressed properly.  Professor Lininger suggests that the inquiry under this rule would properly be to quantify the amount of domestic violence necessarily entailing an intent to silence the victim, but Professor Tuerkheimer is not convinced.  She believes that the aim should be to focus on demystifying the connection between the murder and the past abuse.  This would require lower courts to recognize that the central feature of domestic violence is power/control and that homicide in this context is the ultimate act of control.  She then proceeds to provide evidence that the central feature of domestic violence is power or control over the victim, including conduct other than acts of physical violence.  Finally, Professor Tuerkheimer concludes that in the forfeiture context courts should be concerned whether the defendant has, through all of his battering conduct, acted to reinforce the victim’s connection to him, fortifying her reluctance to ally herself with the state against him in a prosecution.

Response: Directing Military Operations

Michael D. Ramsey

87 Texas L. Rev. See Also 29

PDF Document

In this Comment to Professor Prakash’s article, Professor Ramsey disagrees with Prakash’s contention that the Constitution does not grant the President any exclusive military powers.

In particular, Ramsey takes issue with Prakash’s view that Congress’s constitutional power “to make Rules for the Government and Regulation of the land and naval Forces” gives Congress all-encompassing military power.  He finds that although the Constitution grants Congress the authority to pass standing laws regulating general military conduct, the Constitution does not grant Congress the power to direct battlefield operations.  Comparing the Constitution’s language to that of its predecessor, the Articles of Confederation, Ramsey argues that the President, alone, has the power to direct military operations, and congressional attempts to exercise such authority would be unconstitutional.

Being Heard after Giles: Comments on the Sound of Silence

Myrna S. Raeder

87 Texas L. Rev. See Also 105

PDF Document

In this comment, Professor Raeder examines the major claims in Professor Lininger’s article, agreeing with some but not all of his suggestions.

First, she agrees that an originalist approach to the Confrontation Clause will not work in the domestic violence context because domestic violence was not even criminalized at the time of the founding, and explores this area further.  Next, she examines the per se rules that Professor Lininger proposed for inferring intent to silence the victim in domestic violence cases.  While she thinks these rules will help simplify forfeiture decisions and believes they should provide sufficient evidence of forfeiture, she would add that the rules should be rebuttable presumptions.  The defendant should be able to rebut whether in the individual case they actually prove the existence of the inferred or actual intent supporting forfeiture.  Also, she believes that it would be appropriate to allow the admission of other forms of evidence sufficient to prove forfeiture.  Specifically, she would expand Professor Lininger’s per se rules to include two other categories: proof that the defendant has an abusive personality, and proof that the decedent suffered from Post Traumatic Stress Disorder, explaining why this would be helpful.  Finally, she focuses on Professor Lininger’s efforts to redefine the forfeiture hearsay exception.  She believes that it would still be better to confine the exception to the witness tampering context because it lacks reliability, and can be more directly dealt with by other hearsay exceptions.

Privacy and Fictitious Contracts

David A. Anderson

87 Texas L. Rev. See Also 11

PDF Document

In this comment to Intellectual Privacy by Neil Richards, Professor Anderson discusses the problems inherent with a binary legal classification system that treats information as either all private or all public in an age where communications technologies make the line between private and public information blurry at best.

He approves of the shift in law that recognizes the difference between, for example, a conversation overheard by one’s coworkers, which may be repeated to their families over dinner, and a conversation overheard by the microphone of a undercover investigative reporter, which may be broadcast to the world.  Professor Anderson then calls for reform of the legal fiction that governs check-the-box information-surrender provisions.  He calls those provisions what they are: contracts of adhesion, and suggests discarding the fiction altogether in favor of a solution that does not allow private entities to force us to disclose private information under the pretense that our disclosure is voluntary.

A Response to The Sound of Silence

Andrew King-Ries

87 Texas L. Rev. See Also 85

PDF Document

In this comment, Professor King-Ries explores Professor Lininger’s proposed solution to the conundrum created by the Supreme Court’s decision in Giles v. California, regarding forfeiture by wrongdoing in the domestic violence context.

Professor Lininger advocates the creation of bright-line rules for determining when it is appropriate to infer a defendant’s intent to prevent his victim from testifying.  Profesor King-Ries agrees this is the right approach but finds the rules incomplete.  Instead, Professor King-Ries believes that whenever the prosecution can establish that a battering relationship exists between the defendant and the victim, it is appropriate to infer the defendant’s intent to prevent the victim from testifying for the purposes of the forfeiture by wrongdoing doctrine.   However, Professor King-Ries explains that a battering relationship can involve more than just violent conduct—such as control over financial resources, or emotional isolation—and that because Professor Lininger’s bright-line rules focus only on the violence aspect, they may be inadequate.  For example, a defendant’s confiscation of the victim’s credit cards after the victim’s reporting of a violent incident might be far more effective at preventing testimony than a punch, but it would fall outside Professor Lininger’s per se rule regarding acts of violence during the pendency of the prosecution.

The Where and Why of Intellectual Privacy

Marc Jonathan Blitz

87 Texas L. Rev. See Also 15

PDF Document

In this comment, Professor Blitz argues that professor Richards’ concept of Intellectual Privacy could benefit from a little less First Amendment theory in one area, and a little more in another.  In particular, Professor Blitz takes issue with how Professor Richards defines the activities that come within the scope of intellectual privacy protections, suggesting that this area should utilize less First Amendment theory.

Additionally, however, Professor Blitz suggests that Intellectual Privacy could use a better understanding as to why solitary and private intellectual exploration is an important First Amendment value.

Form, Function, and Justiciability

Anthony J. Bellia

86 Texas L. Rev. See Also 1

PDF Document

In his response to Professor Siegel’s Article, Professor Bellia takes a closer look at some of the Article’s conclusions.  In particular, Professor Bellia responds to the assertion that congressional power to generate justiciability demonstrates the purposelessness of justiciability doctrines.  Are justiciability doctrines an effective limit on federal power?  If constraining the power of a federal institution can be a legitimate constitutional purpose in itself, does congressional control over justiciability act as a real, and not merely illusory, limit on judicial power?

Professor Bellia examines important historical thought on the subject—including James Madison’s concerns expressed at the Federal Convention and John Marshall’s writings in a number of Marshall Court decisions—as evidence that persons knowledgeable in law reasonably understood the forms that limited judicial power to function as constitutional limitations.  The result places the analysis at the center of a fundamental separation-of-powers debate over the respective roles of Congress and the federal courts.

A Comment on The Role of Precedent in Constitutional Adjudication

Burt Neuborne

86 Texas L. Rev. See Also 51

PDF Document

In this Comment, Professor Neuborne attempts to place his views within Professor Shapiro’s taxonomy of approaches to constitutional precedent.  While Professor Neuborne believes that constitutional decisions deserve a qualified respect, he does so for different reasons than those offered in Professor Shapiro’s Article.  In Professor Neuborne’s view, adherence to constitutional precedent is not justified by any particular deference to the wisdom of the past but rather by the practical restraint that it imposes on the political power of modern judges.

Precedent as Tactical Weaponry

Michael Stokes Paulsen

86 Texas L. Rev. See Also 56

PDF Document

In this Comment to Professor Shapiro’s Article, Professor Paulsen—a known skeptic of constitutional stare decisis—colorfully analyzes how different approaches to precedent affect strategic coalition building on a multimember Court.  Under this new tactical theory, Professor Paulsen speculates how his views on constitutional precedent might affect his relative power as a fellow member of Justice Shapiro’s Court.

The History of Section 5 of the Voting Rights Act from Another Perspective

Robert S. Bickerstaff

86 Texas L. Rev. See Also 38

PDF Document

Professor Robert S. Bickerstaff offers a response to Professor Kousser’s article that includes both a contrary analysis of Supreme Court decisions regarding Section 5 and also a detailed discussion of the precise effects of Section 5 on minority representation by elected officials.  Professor Bickerstaff offers insights based on his thirty-two years of experience representing jurisdictions covered by the election-change review process of Section 5.  Although much has been accomplished, real-world application of Section 5, particularly against the backdrop of partisan politics, has presented new challenges for achieving the goal of meaningful minority participation.