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.

Form, Function, and Justiciability

Anthony J. Bellia

86 Texas L. Rev. See Also 1

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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

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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

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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

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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.

The Year of the Gun

Glenn Harlan Reynolds & Brannon P. Denning

86 Texas L. Rev. See Also 22

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The Supreme Court’s grant of certiorari in the District of Columbia gun-ban case promises to make this Term “The Year of the Gun.”[1]  Though the Court will review many other important cases, the Heller case presents a unique constellation of characteristics: It involves the scope of a right that many Americans regard as highly important, but that has not been signifi­cantly addressed by the Supreme Court before, and it does so in an unusually open national election year, with no incumbent or obvious successor running for president.


Though the Court did address Second Amendment issues somewhat in the 1939 case of United States v. Miller,[2] the treatment was limited, and uninformed by opposing counsel because only the federal government was represented.[3]  The Court’s decision in Heller will thus give the Justices a chance to address—or to duck—a number of important Second Amendment issues and may also pose potential difficulties for the Court’s existing jurisprudence of unenumerated rights, in a setting in which the po­litical ramifications are likely to be obvious and immediate.


Pick a Card, Any Card

Ronald Mann

86 Texas L. Rev. See Also 26

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In response to Professor Littwin’s Article, Ronald Mann compliments the article’s focus on the consumers of credit cards, rather than the lenders.  Mann cites two important contributions from the article.  The first is the surprising importance of credit cards in maintaining social status in the milieu that Littwin studies.  The second contribution is crystallizing the need for credit-card products that offer real precommitment.

Mann also praises her research on the use of credit cards at the family level, as opposed to the national or company level.  Finally, Mann defends Littwin’s decision to focus on a particular demographic group because the differentiation of credit-card products means that choices available to low-income consumers will be very different from middle- and upper-income consumers.  But Mann wants to broaden the research.  Mann asserts that a targeted project involving respondent-directed sampling should enable reliable analysis of the stability of Littwin’s conclusions over a larger area.