The Dual Message of Moral Rights

Lior Zemer

90 Texas L. Rev. See Also 125

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Professor Zemer responds to Ms. Mills’s critique of moral rights, including the right of integrity, by arguing that protection of the right of integrity strengthens authorship morality.  He observes that the “bundle of sticks” conception of property is not absolute and allows for the division of rights to a particular piece of property.  Similarly, copyright law allows for division such that certain rights, including the right of integrity, can be protected.  Finally, Professor Zemer argues that there is intrinsic value for artists in the artistic enterprise that is unaddressed by Ms. Mills’s critique of moral rights.  The value also extends to the public through the protection of art and its creative message.

Conceptual Clarity and Necessary Muddles

Michael D. Green & William C. Powers

90 Texas L. Rev. See Also 41

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Professor Michael D. Green and President William C. Powers, Jr., the Co-Reporters of Restatement (Third) of Torts, describe the development of indivisible injury jurisprudence and its evolution in the Restatements. Professor Green and President Powers address Mr. Raupp’s arguments regarding the narrowing of the doctrine, but their analysis leads to a different conclusion, namely that “Apportionment in the face of evidential uncertainty is conceptually messy and does not nourish our appetite for logical ordering.  Yet our judgment is that the alternative is worse, so the law should make this accommodation, appreciating the trade-offs involved.”

Two Cheers for Procedural Review of Guidance Documents

David L. Franklin

90 Texas L. Rev. See Also 111

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Professor Franklin responds to Professor Seidenfeld’s argument in favor of substantive review of guidance documents by raising questions as to whether substantive review is a workable alternative.  Professor Franklin argues that a concern with consistency does not justify giving up the enterprise of procedural review, arguing that Professor Seidentfeld’s argument about the irrelevance of procedural invalidation of guidance documents is overstated.  Next, Professor Franklin acknowledges that he does not object to the proposal to loosen the doctrines of finality and ripeness but questions the effectiveness of the review process.  It is unclear to Professor Franklin how a court would determine which objections and alternatives must be addressed lest the guidance be declared substantively invalid.  As such, Professor Franklin views Professor Seidenfeld’s treatment of the interaction between substantive review and notice and comment as understated.

Professor Franklin concludes, “Preenforcement invalidation of guidance documents for failure to undergo notice and comment is, and should be, the exception rather than the rule.”  Due to the risk of agencies using guidance documents to change law without input from the public, “a persuasive case for abandoning procedural review has yet to be made.”

Originalism at the Right Time?

Josh Blackman

90 Texas L. Rev. See Also 269

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Professor Blackman critiques the originalist methodology employed by Calabresi and Rickert.

Paving the Path to Accurately Predicting Legal Outcomes: A Comment on Professor Chien‘s Predicting Patent Litigation

Jay P. Kesan, David L. Schwartz & Ted Sichelman

90 Texas L. Rev. See Also 97

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Professor Colleen Chien recently developed an innovative and important model that relies on a patent’s “after-acquired” characteristics to predict the chances that the patent will be involved in litigation. This comment critiques Professor Chien’s model by identifying certain weaknesses, including that its dataset is limited to 1990 patents and its sample size may be too small to be sufficiently representative, as well as a number of endogeneity concerns. Additionally, we seek a more precise definition of data regarding the patent owner, further categorization of reexamination data, and research into the timing of transfer. Finally, we question her policy recommendations given these weaknesses and propose areas of further inquiry.

“Two Paths, One Result”: A (Heavily Qualified) Defense of Consensus Constitutionalism

Mark Tushnet

89 Texas L. Rev. See Also 157

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Professor Tushnet responds to Professor Driver’s skepticism toward consensus constitutionalism, or the view that the Supreme Court “inscribes into constitutional law the views of an undifferentiated American people.”  Tushnet argues that consensus constitutionalism is more defensible than Professor Driver’s argument allows, based on a “more generous” reading of their texts.

Tushnet reads the consensus constitutionalists as arguing that the Court’s decisions reflect a consensus and, to the extent there is a divergence from the consensus, the decisions are likely to be overlooked or ignored.  Driver, however, argues that no consensus has ever existed.

In response, Tushnet sketches the “same results claim,” by which the results of debates concerning constitutional values will be the same regardless of whether (1) the judiciary or  (2) the Legislative and Executive Branches, produce the result.  Tushnet qualifies this claim and notes its limitations, thereby offering a research agenda for consensus constitutionalists.

Tushnet also responds to Driver’s view that consensus constitutionalism saps the normativity from constitutional debate, arguing that normativity remains possible particularly in light of recent debates.  He notes that observations about today may be right or wrong but are subject to political change, with the result that any normative analysis is dangerous.  As a result, Tushnet argues that consensus constitutionalists can offer only limited normative guidance to resolve contemporary issues.  In any event, political leaders and judges are not required to find or occupy this normative field before making a decision.

Tushnet concludes by noting Driver’s limited reading of consensus constitutionalism and agreeing with Driver’s criticism of the overstatement of consensus in constitutional debates and Driver’s argument that any consensus does not foreclose normative arguments in court.

A Comprehensive Theory of Deal Structure: Understanding How Transactional Structure Creates Value

Michael S. Knoll & Daniel M. G. Raff

89 Texas L. Rev. See Also 35

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Professors Knoll and Raff argue that Professor Fleischer’s theory that transactional lawyers produce an optimal transactional structure by balancing Coasean transaction costs and regulatory costs is incomplete. Instead, they advance the reverse Modigliani-Miller theorem as a comprehensive theory of transactional structuring. According to this theorem, company managers cannot change the value of that company by altering its capital structure if three assumptions hold: efficient capital markets, no transactions costs, and no taxes. In the real world, however, these assumptions do not hold, providing transactional lawyers with an opportunity to create value. Specifically, by identifying situations where the Modigliani–Miller assumptions fail and by employing capital-structure techniques that reduce the cost from the violation of those assumptions, transactional lawyers produce an optimal transactional structure.

Give ‘Em Enough Rope: Optimal Design of Executive Pay and Rent Extraction

Simone M. Sepe

89 Texas L. Rev. See Also 143

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Due to recent debates concerning executive compensation, incentive structures are increasingly scrutinized.  Professor Sepe reponds to Professor Fried’s argument by (i) challenging the notion that efficiency necessarily results from preventing managers from capturing extra returns, as managers may use these returns effectively, and (ii) arguing that the social costs of overpriced equity offerings are unclear.  Indeed, Sepe concludes that payment of extra returns to managers may be “necessary to preserve incentives not to waste corporate assets.”

The Continuing Relevance of the Establishment Clause: A Reply to Professor Richard C. Schragger

Caroline Mala Corbin

89 Texas L. Rev. See Also 125

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Professor Richard C. Schragger has identified current underenforcement of the Establishment Clause.  However, he may not have identified the right reasons for this underenforcement, Professor Corbin argues.  Rather, state actions with persuasive secular justifications may not implicate the Establishment Clause to the extent that Professor Schragger believes.  Moreover, apparently problematic statements of government officials may be protected as private speech.  Finally, fear of backlash against minorities may animate underenforcement.

Furthermore, Professor Corbin is unconvinced that decentralization is the answer given the benefits of disestablishment, costs of abandoning disestablishment norms, Professor Schragger’s privileging of conflict avoidance over other Establishment Clause norms, and the potential for backlash against religious minorities.

Professor Corbin argues that these observations may lead to different conclusions than those of Professor Schragger.