88 Texas L. Rev. See Also 79
In his Response to Professor Greene’s Article, Professor Primus contends that the stakes of originalist argument can go well beyond any particular case in which originalist arguments are made. He identifies three functions of ethical-originalist argument that go beyond the realm of deciding particular cases. First, originalist argument can establish the content of American history as a value in itself. Second, it can help to legitimate the constitutional system by creating an affinity between the present generation and the generation of heroic constitution makers. And third, it can establish a particular speaker as the authoritative bearer of the American constitutional tradition, thus empowering him to arbitrate questions in the name of that tradition.
87 Texas L. Rev. See Also 79
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.
87 Texas L. Rev. See Also 25
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.
G. Kristian Miccio
87 Texas L. Rev. See Also 93
In this Comment to Professor Lininger’s article, Professor Miccio focuses on two important moral dilemmas highlighted by the Court’s decision in Giles v. California: “(1) whether a search for truth should be sacrificed to our notions of Due Process; and (2) whether Giles’s protection of the accused is premised on beliefs tainted by sexism.”
She argues that the Court’s opinions in Giles, Davis v. Washington, and Town of Castle Rock, Colo. v. Gonzalez, which were all written by Justice Scalia, reflect Scalia’s contempt for battered women. In Miccio’s opinion, Scalia’s formalistic legal reasoning in this area of the law has been inconsistent, while his misogynistic view of women has been undeniably constant.
87 Texas L. Rev. See Also 1
In this Comment to Professor Porter’s article, Professor Littwin discusses the disturbing results of Porter’s investigation into the mortgage-servicing industry and the mortgagee-filed proofs of claim process in bankruptcy. Littwin also evaluates Porter’s suggestions for improving the process.
She considers their probability of success by focusing on the likelihood of adoption and effectiveness upon institution. Littwin’s Comment concludes with a discussion of the proposed elimination of the exemption currently preventing “cram down” of primary-residence home mortgages in bankruptcy.
James F. Flanagan
87 Texas L. Rev. See Also 67
In this comment, Professor Flanagan explains that he disagrees with Professor Lininger’s approach to the forfeiture issue, and in particular opposes the use of bright-line tests to satisfy Giles’ inferred intent standard.
Professor Flanagan argues that the Supreme Court correctly defined the limits of the forfeiture by wrongdoing doctrine in Giles, noting that history and precedent both support having the intent requirement, even if you are not an originalist. Furthermore, Professor Flanagan believes that Giles will probably not have as detrimental an effect on domestic violence prosecutions as some believe, and that this claim is premature; there are still many victim statements that are capable of admission despite the renewed approach to the Confrontation Clause. Furthermore, because there cannot be one law for domestic violence cases, and another for all other types of crimes, Professor Flanagan explains his worry that zeal for convicting domestic abusers will undermine this important Constitutional right. Finally, he examines Professor Lininger’s proposals in detail, suggesting they are not necessary.
O. Max Gardner
87 Texas L. Rev. See Also 9
A consumer bankruptcy attorney with significant experience dealing with the claims of mortgage servicers, O. Max Gardner III believes that Professor Porter’s study on such claims arose out of mounting concern on the part of bankruptcy courts “about the institutional accuracy and truthfulness of mortgage servicers’ claims.” He applauds her work, noting that Professor Porter’s study will enable more attorneys to evaluate such claims with scrutiny. However, while acknowledging this as a significant step in the right direction, Gardner calls for continued work in uncovering all the misconduct of mortgage servicers.
Craig S. Lerner
87 Texas L. Rev. See Also 57
First, he suggests that courts may already consider officer success rates, at least qualitatively, in the form of “officer experience.” He argues that courts are more likely to believe more experienced officers, and likewise more experienced officers are more likely to be successful in searches. Professor Lerner also takes issue with Professor Minzner’s claim that incorporating officer success rates will make the probable cause determination more accurate because the article does not fully develop the meaning of probable cause. The comment explores some possibilities and problems associated with various conceptions of the term. Also, Professor Lerner addresses Professor Minzner’s claim that his proposal will mitigate the problem of “testilying,” suggesting it is unclear if this claim would hold true in the suppression hearing context. Finally, the comment suggests that the record-keeping burden placed on police officers by this proposal may be too onerous, which could deter some officers from applying for warrants in the first place.
87 Texas L. Rev. See Also 63
In this comment, Professor Rosenthal agrees that success rates of officers should be taken into account in making probable cause determinations, but points out one area that Professor Minzner may have overlooked: the problem of overdeterrence.
If the success rate of every officer is scrutinized, and officers are indeed sensitive to the exclusion of evidence or the potential for civil liability, it is likely they will simply refrain from conducting searches except when the likelihood of success is extraordinarily high. Professor Rosenthal suggests that this should be a cause for great concern because a decrease in the number of searches in high-crime areas could lead to a substantially higher crime rate, especially violent crime. He concludes, however, that this should not point towards disregarding Professor Minzner’s proposal, but discusses two solutions to the problem.
87 Texas L. Rev. See Also 45
In this comment, Professor Outterson challenges Professor Roin’s argument that pharmaceutical innovation and public health are harmed by the patent doctrines of non-obviousness and novelty.
He argues that obscure or accidental publications are not actually pushing too many inventions into the public domain and thus substantially limiting the patent eligibility of subsequent pharmaceutical inventions. Outterson particularly disputes Roin’s use of the pain medication Ultracet as an example of such harm. After reviewing the factual circumstances surrounding the drug’s design, the patent application process, and subsequent litigation challenges, he concludes that: the disclosure of the prior art that limited Ultracet’s patentability was not inadvertent; that Ultracet was successfully patented and commercialized notwithstanding the public domain (and did not unduly suffer from free riding); and that ultimately Ultracet was not a particularly valuable drug. The Ultracet case explored in this comment raises very interesting counterpoints to Roin’s claims concerning the real-world harms caused by the non-obviousness and novelty doctrines.