Keeping Republics Republican

Rob Atkinson

88 Texas L. Rev. See Also 235

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In his response to Prof. Brian Galle, Prof. Rob Atkinson offers a “republican philanthropy” perspective to Prof. Galle’s “charitable charity” approach. First, Prof. Atkinson helpfully places Prof. Galle’s thesis in the larger context of charity scholarship; he elucidates the history and differences between nonprofit and for-profit charitable institutions, comparing and contrasting them with governmental institutions. Prof. Atkinson argues that Prof. Galle’s approach makes a valuable contribution to rebutting the for-profit charity assumption that nonprofits are inefficient; however, he believes that governmental institutions are in the best position to provide charitable services. Using the University of Texas School of Law as an example, he demonstrates that republican philanthropies—institutions that are neither for-profit nor traditional “charitable charities”—sponsor important public goods like this debate itself.

Patent Valuation Theory and the Economics of Improvement

Amy L. Landers

88 Texas L. Rev. See Also 163

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In her response to Professor Golden, Professor Landers identifies three threads that underlie the debate on patent remedies.  First, patent value may be difficult to define because of certain indeterminacies.  Second, economic and technological contingencies may distort the amounts paid for patents.  Third, principles of adaptation and implementation might bring the field to a theoretical consensus about patent value.  After analyzing Prof. Golden’s principles in the context of each thread, Prof. Landers proposes that, in order to bridge the differences in current theoretical viewpoints, the explicit addition of the economics of improvement is necessary.

Rewriting the Roberts Court’s Law of Treaties

John T. Parry

88 Texas L. Rev. See Also 65

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In his Response to Professor Young’s article, Professor Parry evaluates Young’s assertion that he is defending Medellín even as he pointedly fails to endorse the Court’s reasoning. He also critiques areas in which he finds Young’s reasoning incomplete: his argument that federal courts should give no deference to a foreign or international tribunal’s treaty interpretation; his broad assertion that some treaties are non-self-executing because of vague treaty language; and his doctrinal conclusion that the Supremacy Clause does not require self-execution.

Executions without Legitimacy? Why the ALI Action Matters

Franklin E. Zimring

88 Texas L. Rev. See Also 257

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Prof. Zimring adds to the discussion Profs. Steiker and Steiker began on the role the American Law Institute (ALI) and the death penalty provisions of the Model Penal Code have played in the death penalty dispute. Specifically, he suggests “three lessons from the half-century ALI story that are of ironic importance.” The first lesson is that preoccupation with political expediency can exact a high cost in the law reform process. The second is that the the withdrawal of the death penalty provisions from the Model Penal Code by the ALI is as effective at undermining the death penalty as an abolitionist’s stance would be. The last lesson is that the sustainability of capital punishment requires not just majority public support but also legal intellectual respectability, which is now lacking.

He Went Back, Jack, and Did It Again: Thoughts on Retributivism, Recidivism as Omission, and Notice

Guha Krishnamurthi

88 Texas L. Rev. See Also 91

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Responding to Professor Lee, Guha Krishnamurthi argues that Lee’s objections to the Bad Character, Notice, and Disobedience accounts are unpersuasive.  As a result, Krishnamurthi argues that Lee’s own account, Recidivism as Omission, does not have any of the advantages over the competing accounts that Lee claims it has.  He argues that there are further detractions to Recidivism as Omission that make it implausible and possibly redundant.  Finally, he contends that the Notice account best explains the intuition that the recidivist deserves more punishment.

Some Corrections and Pushbacks on Grand Jury Rights: A Response to Professor Wildenthal

Sarah E. Agudo

88 Texas L. Rev. See Also 39

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In this piece, Sarah Agudo responds to Professor Wildenthal’s criticism of a prior Texas Law Review article authored by her and Professor Steven G. Calabresi discussing, among more than 100 other individual rights, grand jury rights.  Agudo responds to several of Professor Wildenthal’s critiques of her methodology, while noting that some of his suggestions provide useful areas in which to expand the research on the state constitutional history of grand juries in future publications.

The Contextualization of Tort Law

Richard A. Epstein

88 Texas L. Rev. See Also 105

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In response to Professors Goldberg and Zipursky’s article, Professor Richard Epstein offers an instrumentalist response.  Although instrumentalism distances itself from notions of individual wrongs—focusing instead on tort law as a tool of social control with loss prevention at its heart—Prof. Epstein argues that there are good instrumental reasons for directing attention to the doer–victim relationship.  In addition, he argues that Goldberg and Zipursky have offered a theory short on facts: they speak of negligence, strict liability, and legal and moral wrongs, but they do not give any instances of the particular conduct to which these norms apply.

Their lack of fact density explains why they are unable to come up with a single account of tort law that covers all of the diverse elements that fall within its scope.  Prof. Epstein disaggregates the various elements of different torts from one another in order to retell the entire story in a coherent fashion.