In Defense of Giles: A Response to Professor Lininger

James F. Flanagan

87 Texas L. Rev. See Also 67

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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

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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.

Comment on Max Minzner, Putting Probability Back into Probable Cause

Craig S. Lerner

87 Texas L. Rev. See Also 57

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First, he suggests that courts may already consider officer success rates, at least qualitatively, in the form of “officer experience.”  He argues that courts are more likely to believe more experienced officers, and likewise more experienced officers are more likely to be successful in searches.  Professor Lerner also takes issue with Professor Minzner’s claim that incorporating officer success rates will make the probable cause determination more accurate because the article does not fully develop the meaning of probable cause.  The comment explores some possibilities and problems associated with various conceptions of the term.  Also, Professor Lerner addresses Professor Minzner’s claim that his proposal will mitigate the problem of “testilying,” suggesting it is unclear if this claim would hold true in the suppression hearing context.  Finally, the comment suggests that the record-keeping burden placed on police officers by this proposal may be too onerous, which could deter some officers from applying for warrants in the first place.

Probability, Probable Cause, and the Law of Unintended Consequences

Lawrence Rosenthal

87 Texas L. Rev. See Also 63

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In this comment, Professor Rosenthal agrees that success rates of officers should be taken into account in making probable cause determinations, but points out one area that Professor Minzner may have overlooked: the problem of overdeterrence.

If the success rate of every officer is scrutinized, and officers are indeed sensitive to the exclusion of evidence or the potential for civil liability, it is likely they will simply refrain from conducting searches except when the likelihood of success is extraordinarily high.  Professor Rosenthal suggests that this should be a cause for great concern because a decrease in the number of searches in high-crime areas could lead to a substantially higher crime rate, especially violent crime.  He concludes, however, that this should not point towards disregarding Professor Minzner’s proposal, but discusses two solutions to the problem.

Death from the Public Domain?

Kevin Outterson

87 Texas L. Rev. See Also 45

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In this comment, Professor Outterson challenges Professor Roin’s argument that pharmaceutical innovation and public health are harmed by the patent doctrines of non-obviousness and novelty.

He argues that obscure or accidental publications are not actually pushing too many inventions into the public domain and thus substantially limiting the patent eligibility of subsequent pharmaceutical inventions. Outterson particularly disputes Roin’s use of the pain medication Ultracet as an example of such harm. After reviewing the factual circumstances surrounding the drug’s design, the patent application process, and subsequent litigation challenges, he concludes that: the disclosure of the prior art that limited Ultracet’s patentability was not inadvertent; that Ultracet was successfully patented and commercialized notwithstanding the public domain (and did not unduly suffer from free riding); and that ultimately Ultracet was not a particularly valuable drug. The Ultracet case explored in this comment raises very interesting counterpoints to Roin’s claims concerning the real-world harms caused by the non-obviousness and novelty doctrines.

Candide Meets the Sherman Act

William Shieber

87 Texas L. Rev. See Also 37

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In this comment, William Shieber argues that Professor Crane’s analysis is fundamentally flawed for two reasons.  First, Shieber suggests that Crane’s measure of how to judge political interest—considering references to antitrust issues in presidential candidate speeches, and considering the absence of direct Presidential involvement in filing antitrust suits—is wanting.  Second, Shieber considers the fact that both the Federal Trade Commission and the DOJ, the agencies responsible for antitrust enforcement, are overseen by political appointees.  From this, Shieber argues that one cannot remove the values of these appointees from the regulatory process, which necessarily means that the ultimate decisions made by these agencies have a substantial political component.  For these reasons, Shieber disagrees with Crane’s conclusion that U.S. antitrust enforcement has declined in political salience.

Pangloss Responds

Daniel A. Crane

87 Texas L. Rev. See Also 43

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In his response to Mr. Shieber’s comment, Professor Crane clarifies that his article does not suggest antitrust decisions are apolitical.  Crane agrees with Shieber that the ideological bent of the administration has some effect on antitrust outcomes.  However, Crane notes that antitrust has ceased to be a campaign issue and is almost completely absent from political debate.  Crane also criticizes Shieber’s use of the Bush administration’s settlement of the Microsoft antitrust case to support his opinion that antitrust enforcement is still highly partisan without first noting that the D.C. Circuit opinion—handed down at the very beginning of the Bush administration—damaged the government’s bargaining position.

Control Killings

Deborah Tuerkheimer

87 Texas L. Rev. See Also 117

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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

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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

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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.