88 Texas L. Rev. See Also 137
In this piece, Professor Marcus proposes that Professor Tidmarsh’s adequacy metric would serve better as a standard than a rule. Marcus praises the metric as a convincing and stimulating game-changer, but he also highlights a potential criticism: the adequacy requirement, foundational as it is, should not be reduced to any single test, even one as sensible as Tidmarsh’s. To prove his point, Marcus examines two categories of cases, one for which a strict application of the “do no harm” test would preclude arguably desirable class litigation, and one for which his test would permit unattractive distributional inequities among class members.
88 Texas L. Rev. See Also 149
In this Response, Professor Rodrigues states that while she largely agrees Professor Galle’s argument that nonprofit charities cannot be reduced to their tax-exempt status, she disagrees with him on two points. First, Rodrigues argues that Galle overstates the problem posed by for-profit firms offering charitable services. Second, she insists that Galle understates the power of the “warm glow” in the nonprofit organization.
88 Texas L. Rev. See Also 189
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.
88 Texas L. Rev. See Also 155
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.
88 Texas L. Rev. See Also 201
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.
88 Texas L. Rev. See Also 79
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.
87 Texas L. Rev. See Also 79
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.
87 Texas L. Rev. See Also 25
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.
G. Kristian Miccio
87 Texas L. Rev. See Also 93
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 Giles, Davis 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.
87 Texas L. Rev. See Also 1
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.