Other People’s Papers

Jane Bambauer

94 Texas L. Rev. 205

PDF Document

The third party doctrine permits the government to collect consumer records without implicating the Fourth Amendment. The doctrine strains the reasoning of all possible conceptions of the Fourth Amendment and is destined for reform. So far, scholars and jurists have advanced proposals using a cramped analytical model that attempts to balance privacy and security. They fail to account for the filterability of data. Filtering can simultaneously expand law enforcement access to relevant information while reducing access to irrelevant information. Thus, existing proposals will distort criminal justice by denying police a resource that can cabin discretion, increase distributional fairness, and exculpate the wrongly accused.

In this Article, Jane Bambauer offers the first comprehensive analysis of third party data in police investigations by considering interests beyond privacy and security. First, it shows how existing proposals to require suspicion or a warrant will inadvertently conflict with other constitutional values, including equal protection, the First Amendment, and the due process rights of the innocent. Then it offers surgical reforms that address the most problematic applications of the doctrine: suspect-driven data collection, and bulk data collection. Well-designed reforms to the third party doctrine will shut down the data collection practices that most seriously offend civil liberties without impeding valuable, liberty-enhancing innovations in policing.

The Arbitration Bootstrap

Christopher R. Leslie

94 Texas L. Rev. 265

PDF Document

Arbitration clauses have become ubiquitous. Arbitration clauses require consumers and employees to waive their rights to bring litigation in court, leaving private arbitration as their only avenue to seek redress for violations of any law, including consumer protection laws, antitrust law, and anti-discrimination laws. The arbitration process is less protective of consumers and employees in many ways than the litigation process in public courts. Yet for consumers in many markets, arbitration clauses are unavoidable because firms impose contracts of adhesion that include mandatory arbitration clauses, which require individuals to waive their rights to sue in court.

As the Supreme Court has expanded the categories of legal claims that are subject to mandatory arbitration, firms have begun to load their mandatory arbitration clauses with unconscionable contract terms. This is arbitration bootstrapping—firms inserting terms unrelated to arbitration into an arbitration clause in the hopes that judges will be more likely to enforce those terms.

In the wake of the Supreme Court’s decisions in Concepcion and Italian Colors, judged who have upheld anti-consumer terms in arbitration clauses claim to be merely implementing the will of Congress. Yet the senators and representatives who voted for the Federal Arbitration Act would not recognize today’s arbitration clauses that courts are enforcing in the name of the 1925 Congress. This Article examines the legislative history of the Federal Arbitration Act to show that the enforcement of current arbitration clauses, both as to their reach and their content, is inconsistent with the purpose and the text of the Federal Arbitration Act.

Implementing Just Mercy

William W. Berry III

94 Texas L. Rev. 331

PDF Document

In his recent book, Just Mercy: A Story of Justice and Redemption, Alabama Equal Justice Initiative lawyer Bryan Stevenson describes the challenges and struggles of representing indigent individuals accused of serious crimes. In this book review, Professor Berry describes Stevenson’s book, highlighting the principles of just mercy latent in his narrative and their connection to the individualized consideration of criminal offenders. He then shifts to argue that many of the current shortcomings of the criminal justice system result directly from stigmatizing alleged offenders rather than considering them individually as people possessing human dignity. Finally, he outlines a series of criminal justice reforms drawn from Stevenson’s experiences and the concepts of individualized consideration that emerge from pursuing just mercy.

Invisible Women: Mass Incarceration’s Forgotten Casualties

Michele Goodwin

94 Texas L. Rev. 353

PDF Document

“Invisible Women: Mass Incarceration’s Forgotten Casualties” is a review of Alice Goffman’s On the Run: Fugitive Life in an American City (The University of Chicago Press, 2014) and James Jacobs’ The Eternal Criminal Record (Harvard University Press, 2015). It examines the lack of critical discussion of the impact that the criminal justice system has on women contained in Goffman’s On the Run. In this Review Essay, Professor Goodwin argues that women are often overlooked as victims of the war on drugs and a broken system of law enforcement and mass incarceration. She then examines Jacobs’ The Eternal Criminal Record to look at the collateral damage caused to women, children, and families as a result of felony disenfranchisement, loss of housing, and loss of parental custody.

Marriage Markets and the Price of Masculinity

Camille Gear Rich

94 Texas L. Rev. 387

PDF Document

Professors Cahn’s and Carbon’s book Marriage Markets is a nuanced account of the ways coupling and family formation spur wealth inequality and therefore is a welcome addition to their family law corpus. Professor Rich reframes Marriage Markets using tools from economic theory and masculinity studies to surface the gender story within the class account provided in the book. She begins by documenting the emergence of the female marriage market consumer and the consequences of this development, and then considers whether marriage must change or masculinity must change in order to spur contemporary long term coupling in working class and poor communities. She argues that the key to incentivizing the female marriage market consumer to commit is by developing marriage models that minimize women’s economic risk, and maximize their access to economic resources in extended kinship networks. Once this change is made new structures and policy options emerge.

Go, Fly a Kite: The Promises (and Perils) of Airborne Wind-Energy Systems

William R. Langley

94 Texas L. Rev. 425

PDF Document

Commercial wind power generation is still, in many ways, an emerging technology. These few decades have provided little time to generate the laws, regulations, and judicial decisions that define other sectors of the energy industry. We still lack definitive answers to questions of property rights associated with wind generation and environmental impacts. Already, those questions are evolving, and advances in technology may radically alter the landscape. In this Note, William Langley discusses some of the legal issues that may be implicated by the introduction of a new technology: airborne wind energy.

Property as Institutions for Resources: Lessons from and for IP

Julie E. Cohen

94 Texas L. Rev. 1

PDF Document

The idea of property in land as the paradigm case of property exercises despotic dominion over property thinking. From the perspective of evolving political economy, however, a land-centric model of property makes very little sense. Property institutions coordinate access to resources, and so it is reasonable to expect them to differ in ways that respond to the characteristics of those resources. The debate about whether intellectual property (IP) is property is instructive. IP scholars have pursued the property debate using a conceptual framework derived from common law real property doctrines and organized around the practical and theoretical problems associated with property rights in land, but the resources at the center of debates about the appropriate extent of IP-rightholder control could not be more different from land. Intellectual resources are routinely sliced and diced, aggregated and fractionated, used and reused, in ways that land is not and could not be. This might mean that IP is not property, as some have argued, or it might mean that we have outgrown the monolithic, land-centric model—that in the postindustrial era of wealth production, the cosmology of property can no longer place terra firma at the center.

This Article develops an account of property as a set of resource-dependent legal institutions characterized by overlapping sets of family resemblances and then reconsiders the IP question. Property in intellectual goods resembles property in land in some respects, property in natural resources in other respects, property in corporations in others, and property in intangible financial instruments in still others, but also systematically diverges from each of those other forms of property. Legal institutions for IP must accommodate four important points of divergence: the different incentives of creators and intermediaries; the variety of ways in which intellectual goods are produced; the central importance of intermediation within IP ecologies; and the widespread use of licensing to delineate rights and obligations.

Do Laws Have a Constitutional Shelf Life?

Allison Orr Larsen

94 Texas L. Rev. 59

PDF Document

Times change. A statute passed today may seem obsolete tomorrow. Does the Constitution dictate when a law effectively expires? In Shelby County v. Holder, the 2013 decision that invalidated a provision of the Voting Rights Act, the Court seems to answer that question in the affirmative. Although rational and constitutional when written, the Court held that the coverage formula of the law grew to be irrational over time and was unconstitutional now because it bears “no logical relation to the present day.” This reason for invalidating a law is puzzling. The question answered in Shelby County was not about whether Congress had constitutional power to pass the Voting Rights Act. It was not even about whether our understanding of the scope of that power had changed from 1965 to 2013. The question was whether the passage of time and changed circumstances created a distinct reason to nullify the law.

In this Article, I label this question one of a “constitutional shelf life.” The plaintiffs in Shelby County were not the first ones to ask for invalidation of an unconstitutionally stale law, and they will not be the last. Indeed, since the decision, plaintiffs as varied as marijuana enthusiasts and funeral-home directors have cited Shelby County for the claim that the “current burdens” of a law “must be justified by current needs.” The goal of this Article is to track the idea of a shelf life across various aspects of constitutional law, to demonstrate that the issue arises in far more contexts than one might anticipate, and then to offer an approach for principled application.

Antislavery Women and the Origins of American Jurisprudence

Alfred L. Brophy

94 Texas L. Rev. 115

PDF Document

“Antislavery Women and the Origins of American Jurisprudence” is a Review of Sarah Roth’s Gender and Race in Antebellum Popular Culture (Cambridge University Press, 2014). It assesses Roth’s account of the dialogue between antislavery and proslavery writers. Roth finds that the antislavery and proslavery writers were joined in their depiction of enslaved people in the 1820s and early 1830s—as savage people who threatened rebellion. But as antislavery writers shifted to portray enslaved people as humble citizens in waiting, the proslavery writers responded with an image of the plantation as a family. This critique turns to Southern judges and treatise writers to provide a slightly different picture, which shows that while the public face of the proslavery movement may have been of happy enslaved people, the hard-nosed economic and legal side continued with the initial image of enslaved people. This became particularly salient as the South moved toward the Civil War. Roth perceptively portrays the shift in the North that led to increasing calls for African-American freedom and citizenship and the rise of empirical critiques of law, which became central to postwar jurisprudence. That is, the antislavery white women in Roth’s study injected empirical as well as humanitarian considerations into jurisprudence. Meanwhile, in the Southern courts the reaction to calls for citizenship resulted in increasingly dramatic efforts to deny citizenship and ultimately in a secession movement along the lines sketched by Southern legal thinkers.

Counting the Right to Vote in the Next Census: Reviving Section Two of the Fourteenth Amendment

Michael Hurta

94 Texas L. Rev. 147

PDF Document

In this Note, Mr. Hurta explores the role that Section Two of the Fourteenth Amendment can play in protecting the right to vote. Section Two of the Fourteenth Amendment, which states that a state’s congressional apportionment basis shall be lessened when it abridges or denies citizens’ right to vote, is often viewed as a historical anomaly. While Section Two does not directly invalidate any laws, it has no limitations on the intent of voter abridgments, so it reaches farther than any other voter protection in American law. Furthermore, statutory law already gives the power to enforce Section Two to an executive agency: the Census Bureau has the authority to collect data as necessary for congressional apportionment. Mr. Hurta therefore argues that the 2020 Census should ask questions about people’s right to vote, and the subsequent apportionment calculations ought to take that data into account. By adhering to this legal duty, the Census Bureau will become one of the most powerful protectors of voting rights in the government.