Patent Remedies and Practical Reason

Thomas F. Cotter

88 Texas L. Rev. See Also 125

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In this Response, Professor Thomas Cotter compares his concept of “practical reason,” which emphasizes the need for choice, deliberation, and communication in the face of radical uncertainty and conflicting norms, with Golden’s five principles for patent remedies.  Cotter argues that the application of Golden’s principles would be grounded in a form of practical reason; both methodologies take a nondogmatic approach to making rational judgments under conditions of uncertainty.  But Cotter also offers two critiques of Golden: first, Golden sometimes seems to betray a Platonic longing for something more determinate than practical reason; and second, Cotter disagrees with Golden’s analysis on specific issues within the field of patent remedies.

The Voting Rights Act Through the Justices‘ Eyes: NAMUDNO and Beyond

Joshua A. Douglas

88 Texas L. Rev. See Also 1

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In this Essay, Douglas tells us that “[t]he most surprising action from the Supreme Court’s latest term may be what it did not do:  strike down Section 5 of the Voting Rights Act . . . as unconstitutional.” Douglas explores the Court’s recent decision in Northwest Austin Municipal Utility District Number One v. Holder (NAMUDNO), in which the Justices managed to avoid invalidating Congress’s reauthorization of the “preclearance” provision of the Voting Rights Act (which requires preapproval for changes to voting procedures in covered jurisdictions). This Essay explores the reasons behind the Court’s 8–1 opinion, which resolved the issue on narrow statutory grounds, and what the comments in dicta by various Justices may mean for future election law cases.

Douglas first discusses the Court’s statutory interpretation and constitutional avoidance approach in NAMUDNO.  He then explains how each current Justice generally views the Voting Rights Act (VRA) by analyzing their voting patterns in previous VRA cases.  He concludes that the Court’s recent approach in NAMUDNOand other election law cases reveals a trend toward “strategic compromise” among the Justices in this area. Over the past few years, Douglas argues, Justices on the Court have “compromised their usual positions in election law cases in favor of a strategic and incremental approach to effectuate their long-term goals (or ward off starker and less favorable results).”

This Essay includes an Appendix — a table of VRA cases and individual Justices’ voting records in them used by the author in his analysis, which may be useful to those seeking more in-depth information about the Supreme Court’s jurisprudence concerning the Voting Rights Act.

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.

Privacy and Fictitious Contracts

David A. Anderson

87 Texas L. Rev. See Also 11

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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

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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

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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.

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

Cheryl Hanna

87 Texas L. Rev. See Also 79

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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

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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.