Solar Rights for Texas Property Owners

Sara C. Bronin

89 Texas L. Rev. See Also 79

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In response to Jamie France’s note, A Proposed Solar Access Law for the State of Texas, Professor Bronin urges future commentators to focus on three additional areas of inquiry related to proposed solar rights regimes. Bronin argues that such proposals would be strengthened by discussion of potential legal challenges to the proposals, related political issues, and renewable energy microgrids.

Ms. France’s proposal for the State of Texas includes the elimination of preexisting private property restrictions that negatively affect solar access.  Bronin argues that this proposal would be strengthened by a discussion of potential challenges under federal and state takings clauses.  Additionally, Ms. France’s suggestion that zoning ordinances protect homeowners’ solar access would benefit from a discussion of challenges that might be raised by home rule cities in Texas.  Furthermore, to provide a full perspective, a discussion of possible alternative rules for Houston, which lacks a zoning ordinance, might add to Ms. France’s proposal, according to Bronin.

Bronin also emphasizes that proposals for solar rights regimes, such as that of Ms. France, often affect various interest groups, and commentators should address the political issues that this creates. Specifically, in discussing Ms. France’s proposal for the State of Texas, Bronin identifies the lack of political support for small-scale renewable energy installations as opposed to large-scale projects, Texas’s current budget shortfall, and powerful interests groups that are affected by the proposal.

Finally, Bronin encourages other commentators to consider advocating for renewable energy microgrids.  Bronin has described these as “small-scale, low-voltage distributed generation between neighbors for energy derived from sources such as solar collectors, wind power systems, microturbines, geothermal wells, and fuel cells, which have minimal negative impact on the environment.”  Bronin believes that renewable energy microgrids “should be a key part of solar access regimes in any state.”

Intellectual Liability in Context

John M. Golden

88 Texas L. Rev. See Also 211

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Professor Golden’s response to Professor Crane highlights the limitations on Prof. Crane’s thesis, notably the difficulties that accompany an attempt to precisely calculate awards sufficient to catalyze creative activity both in the short-term and long-term. Professor Golden also takes issue with Professor Crane’s arguments for permanent injunctions to nonpracticing patentees and his defense of private-bargaining as a method of circumventing questions of the court’s institutional competence in patent-rate setting.

Nixon‘s Revenge

Michael J. Gerhardt

88 Texas L. Rev. See Also 43

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In his Response to Professor Sacharoff’s Article, Professor Gerhardt critiques the use of sources, contending that Professor Sacharoff reads too much into the “antimonarchical premises” of the Constitution and too little into other sources. Gerhardt suggests alternatives to Sacharoff’s reading of the structure and context of the Constitution, as well as precedents and analogies that might inform our judgment about the extent to which former presidents might or should have any control over executive privilege.

Optimal Tax Treaty Administrative Guidance

Craig M. Boise

88 Texas L. Rev. See Also 175

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In his Response to Professor Kirsch, Professor Boise critiques the assertion that administrative regulations are superior to technical explanations in interpreting tax treaties. He explains three imperatives that any interpretation regime must meet (authoritativeness, comprehensiveness, and timeliness) before offering other alternatives on optimal treaty guidance.

Procedural Adequacy

Elizabeth Chamblee Burch

88 Texas L. Rev. See Also 55

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In her Response to Professor Tidmarsh’s Article articulating the “do no harm” principle, Professor Burch explores Tidmarsh’s theory from a procedural legitimacy perspective. She considers the assumption that in any given class action both attorneys and class representatives tend to act as self-interested homo economicus. She argues that (1) tailoring adequacy to egocentric behavior by providing a floor to minimally acceptable conduct creates a troubling anchor that is at odds with agency and ethical principles; and (2) this proposed change, particularly as it tolerates collusion and unequal treatment among class members, may adversely impact perceptions of procedural justice and class-action legitimacy.

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.