The New Cognitive Property: Human Capital Law and the Reach of Intellectual Property

Orly Lobel

93 Texas L. Rev. 789

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Contemporary law is expanding into the area of “cognitive property,” leading to the commodification of intellectual intangibles, including human capital. In this Article, Professor Lobel explores this phenomenon, focusing on the the increase in trade secret protection and the so-called “talent wars.” She uncovers the harms of this new cognitive property and analyzes these effects through the lens of new economic research about endogenous growth, labor-market search, and innovation networks. She argues that this rise in cognitive controls should be understood as the Third Enclosure Movement, which propertizes the intangibles of the human mind and stifles potential innovations.

Heart Versus Head: Do Judges Follow the Law or Follow Their Feelings?

Andrew J. Wistrich, Jeffrey J. Rachlinski & Chris Guthrie

93 Texas L. Rev. 855

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It is well established that juries are apt to convict or acquit a defendant based on how much sympathy they feel for the accused, but are Judges also susceptible to similar emotions? They certainly routinely espouse the adoption of a dispassionate perspective on litigants. In this Article, for the first time, experimental research is used in an attempt to measure whether judges allow their feelings to bias their decisions. Judge Wistrich and Professors Rachlinski and Guthrie collect data on over 1,800 state and federal trial judges and ultimately conclude that feelings do bias judges’ decisions.

Whither/Wither Alimony

June Carbone & Naomi Cahn

93 Texas L. Rev. 925

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Professors Carbone and Cahn review Professor Starnes’s book on alimony in current family law and how it should be analyzed like a modern partnership.

My Body, My Bank

I. Glenn Cohen

93 Texas L. Rev. 953

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Professor Cohen reviews Professor Swanson’s book on the history of the banking industries in milk, blood, and sperm in America from 1908 to the present.

Fraud on the Classroom: Why State False Claims Acts Are Not the Solution to All Fraud on State and Local Governments

Marianne W. Nitsch

93 Texas L. Rev. 1009

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As a result of the success of the federal False Claims Act, states have begun to enact their own versions of false claims acts. However, despite this increased legislation, states are still ineffective at combating some forms of fraud against state and local governments. In this Note, Ms. Nitsch surveys state false claims acts and discusses their effectiveness at combating a particular kind of fraud, fraud in public-education data reporting. She concludes that these new state laws are ineffective at preventing educators from participating in fraud.

Somebody’s Watching Me: Civilian Oversight of Data-Collection Technologies

Steven D. Seybold

93 Texas L. Rev. 1029

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As police departments have increasingly embraced emerging data collection technologies, questions have arisen as to how we can protect citizens’ privacy and prevent police abuse of these technologies. One suggestion has been to use civilian oversight mechanisms to regulate these techniques and provide much needed transparency. In this note, Mr. Seybold discusses these civilian oversight mechnisms, focusing on the Loyal Opposition Policy Review Board, in order to determine their efficacy as constraints on police power.

Confronting the Peppercorn Settlement in Merger Litigation: An Empirical Analysis and a Proposal for Reform

Jill E. Fisch, Sean J. Griffith & Steven Davidoff Solomon

93 Texas L. Rev. 557

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In recent years, it has become common practice for a company to be sued by its shareholders after every corporate merger. Many of these suits are settled quickly for minor disclosures, and very large fees for the attorneys of the plaintiff-shareholders. In this Article, Professors Fisch, Griffith, and Davidoff provide an empirical analysis on the worth of these disclosures and argue for changes to the current structure of merger litigation in order to prevent these costly merger suits.

Deference Asymmetries: Distortions in the Evolution of Regulatory Law

Melissa F. Wasserman

93 Texas L. Rev. 625

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Administrative agencies and law increasingly play a major role in the government of our society. However, certain legal and institutional aspects of administrative law have created deference asymmetries—differences in the level of deference given to an agency’s judgments based on the ruling of that judgment. These asymmetries have the potential to drive the development of regulatory law in a direction that benefits the entities that agencies are meant to regulate. In this article, Professor Wasserman identifies these asymmetries and explores the implications that they have for administrative law.

Family Law’s Loose Canon

Joanna L. Grossman

93 Texas L. Rev. 681

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Professor Grossman reviews Professor Hasday’s book on the development of the “family law canon.” which Hasday defines as a “series of overriding stories that purport to make sense of how the law governs family members and family life.”