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.

Notice and Patent Remedies

Herbert Hovenkamp

88 Texas L. Rev. See Also 221

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Prof. Hovenkamp evaluates Prof. Golden’s proposals in Principles for Patent Remedies, arguing for the addition of an additional principle: notice. The author writes, “remedies must be administered so as to encourage optimal and timely private disclosure as well as optimal, cost-justified private search.”

Like other property rights regimes, patent law should have an effective system for giving notice and for providing incentives to respond to notice once given. Analogizing to the real property system, Hovenkamp describes several important principles of notice systems. Such systems generally require collaboration by government officials and private-market participants. Moreover, the duty to provide or obtain notice ought to be placed on the party that can do so at the lowest cost. In line with this reasoning, Hovenkamp writes that when recording is cheaper than searching, the burden should be placed on the recorder. And where interests are not recorded, the owner’s duty to provide alternative kinds of notice is expanded.

With these principles of notice in hand, Hovenkamp turns to the patent-recording system. He finds that it is not nearly as reliable as the real property system. Although highly technical rules for drafting patent claims exist, the language of such claims lacks the clarity of deed descriptions. In addition, patent searches are not only more costly but highly unreliable.

Some of these problems are of course inherent to the patent system. But, aruges Hovenkamp, patent law should take a lesson from real property. Where the notice system breaks down, patent law should impose a duty upon owners to compensate by providing effective notice. In light of this, the author discusses the “late claim” feature of patent law, using the Rambus case as an example of its flaws and how to fix it. After addressing some other patent-damages issues related to notice, Hovenkamp concludes that as patents have come to resemble a kind of property rather than a monopoly—a good thing—it ought to be treated as such. The notice system of patent law, then, is “an essential policy lever that can aid a court in determining the remedy most consistent with the innovation-furthering goals of the patent system.”

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.