Why the Enforcement Agencies’ Recent Efforts Will Not Encourage Ex Ante Licensing Negotiations in Standard-Setting Organizations

Lauren E. Barrows

89 Texas L. Rev. 967

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Enforcement agencies, through a series of speeches and documents, have recently adopted a policy to encourage private industry groups known as standard-setting organizations (SSOs) to engage in ex antelicensing negotiations.  Patent holders and many potential licensees are typically SSO members.  As a group, they could potentially determine licensing terms when considering whether to incorporate patented technology into a standard but do not for fear of antitrust liability.  In this Note, Barrows argues that given the new policy, SSOs will continue to not engage in ex ante licensing negotiations without further agency action.  DOJ and FTC statements currently do not provide sufficiently clear guidance.  So, SSOs will continue to fear antitrust liability, and thus the new policy will not be implemented.  Not only does this undermine the agencies’ credibility, writes Barrows, it will also remain unclear whether ex ante licensing negotiations are actually desirable.

Barrows provides some background on SSOs and their importance, specifically in the context of the IP-intensive, high-technology industries.  Barrows explains that, in an effort to mitigate holdup, many SSOs require members to license any patented technology incorporated into a standard on certain terms.  But, because SSOs fear antitrust liability, they do not determine these terms through ex ante licensing, and the terms that they do use are vague.  Barrows notes that could undercut their usefulness.

Moreover, Barrows argues that the approach of the enforcement agencies matters.  She provides an overview of the Sherman Act and then looks at two violations potentially posed by ex ante licensing negotiations. Barrows then analyzes the recent statements of the DOJ and FTC, arguing that the agencies failed to provide clear guidance to the SSOs to encourage them to undertake such negotiations.  Finally, she offers a pair of suggestions for limiting the chance that SSOs who engage in such negotiations will face liability.

Reviews of a Lifetime

Douglas Laycock

89 Texas L. Rev. 949

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In this piece, Laycock responds to reviews of his work by Thomas Berg, Steven Smith, and Jay Wexler.  Professor Smith argues that Laycock has let his views on religion drive his views on religious liberty, a form of the Puritan mistake.  Laycock notes that he is a secular agnostic who respects believers and thinks that both “sides” should win on some issues and lose on others.  He writes that it is only to the extent we distinguish our views on religious liberty from our views on religion that religious liberty can contribute towards solving the underlying problem.

Laycock has also recasted religious reasons for adopting a regime of religious liberty in secular terms, and Professors Berg and Smith criticize Laycock for attempting to justify religious liberty in exclusively secular terms.  So, Laycock clarifies his position: he does not mean to exclude religious arguments from the public debate or foreclose public officials from relying on religious motivations.  Rather, he means that government cannot announce its commitment to a disputed religious proposition.  Laycock emphasizes that he is not concerned whether government officials have religious motivations, but that the laws and actions of government remain neutral towards religion.

Professor Berg also raises a different objection, which is that the case for religious liberty is weakened when we omit religious reasons.  Laycock notes that he himself emphasizes religious reasons for religious audiences, but he argues that such reasons are useless for secular audiences.  And to justify religious liberty in a religiously diverse society, the reasons given must not require acceptance or rejection of any propositions of religious faith.

Professor Smith criticizes Laycock for counting the alienation of nonbelievers as a reason to keep the government from endorsing religious belief but not counting the parallel alienation of believers who expect government to endorse their beliefs.  Laycock notes that this is only one reason among others for why he thinks government should refrain from taking positions on religious questions.  He writes that it is incoherent to the concept of religious liberty to allow one religious group, such as conservative Christians, to have the right to use the instruments of government to exercise their religion.

Professor Smith also questions Laycock’s resistance to generic endorsement like the national motto.  Laycock notes that, in practice, there will always be a de minimis exception.  Often such generic endorsements are not really that controversial, but Laycock writes that this is less and less true as the nonbelieving population continues to grow.

After addressing several other considerations and objections, Laycock concludes that the criticisms in these reviews will help inform his future work, for which he is indebted.

Two Problems with the Value of Participation in Democratic Theory and Copyright

David A. Snyder

89 Texas L. Rev. 1019

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According to democratic theory, copyright should be used to bring society, individuals, or both closer to some ideal.  Democratic theorists thus value the active making of works of expression by individuals, that is, participation, because they believe it can help to achieve this ideal.

In this Note, Snyder explores two problems with the value of participation.  First, the content of the value of participation is vague, with room for greater specification.  Second, the value of participation seemingly violates the neutrality thesis by mandating government action on the basis of a conception of the good. Neutralists, by contrast, argue that coercive government action designed to promote a view of the good is inappropriate.

Snyder argues that understanding the relationship between the value of autonomy and that of participation helps to give further specification of the latter.  Moreover, Snyder argues that this modified concept of participation does not violate the neutrality thesis.  On the one hand, it does not qualify as a concept of the good.  On the other, its implementation does not involve coercion.

The Consensus Constitution

Justin Driver

89 Texas L. Rev. 755

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In this Article, Driver challenges the rising view within constitutional law known as “consensus constitutionalism.”  This view holds that the Supreme Court interprets the Constitution in a way that reflects the “consensus” beliefs of the American public.  Driver challenges this view by identifying and critiquing its defining features.

Driver notes that this consensus movement has a similar precedent among history professors during the 1940s and 1950s.  These professors, reacting to a perceived overemphasis on conflict in examinations of the past, argued that the historical focus should instead by on American commonality.  This movement did not last, as it was discredited by the 1960s for its homogenous conception of the past.  Driver finds it curious, then, that consensus constitutionalists, who also rely on history in their scholarship, do not appear to have incorporated the debate among history professors into their work, especially considering the important lessons and conclusions that can be drawn from it.

After reviewing this debate, Driver turns to three analytical shortcomings of consensus constitutionalism.  It views the American people as united when in fact ideological divisions pervade society.  Also, its notion that the Court’s decisions reflect some societal consensus leads to the misguided impression that judicial decisions are inevitable, so the composition of the Court is irrelevant.  Lastly, it contains distressing normative implications regarding the Court’s ability to clash with majority preferences, assuming the justices accept its warning about the perils of the Court outpacing public opinion.

As an alternative external methodology, Driver proposes “contested constitutionalism.”  According to this approach, the Court’s constitutional interpretation typically arises in the face of ideological conflict, not consensus.  Driver then illustrates in detail how this alternative approach plays out in practice by providing a revised account of Brown v. Board of Education and the Court’s role in recognizing black Americans as full citizens during this period.

In conclusion, Driver urges legal scholars to move away from consensus constitutionalism and its focus on simplicity, and instead embrace contested constitutionalism in order to provide a richer historical account of many significant events in legal history.  Moreover, how law professors explain the Court’s history and its ability to protect minority rights, writes Driver, ultimately exert some influence on how judges perform their jobs.  Thus, contested constitutionalism seeks to preserve the Court’s countermajoritarian capabilities.

Quality Care for Queer Nursing Home Residents: The Prospect of Reforming the Nursing Home Reform Act

Michael J. Ritter

89 Texas L. Rev. 999

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In this Note, Ritter examines legal protections for queer elders residing in nursing homes, specifically under the Nursing Home Reform Act (NHRA).  As the U.S. population steadily ages, so does the portion of queer elders increase—what Ritter refers to as “the hidden population.”  What’s more, this segment of the elder population often lacks immediate family members that they can live with when unable to live alone and, unlike opposite-sex couples, same-sex partners are often ineligible for tax and other benefits.  As a result, a relatively greater number of queer elders will be more likely to move into nursing homes.

Ritter first provides an overview of the problems elderly individuals face when transitioning from independent living to a nursing home.  He highlights the distinctive problems queer elders face in this transition, specifically discrimination in the form of abuse, neglect, and stigmatization.  These problems, Ritter notes, along with a perceived need to conceal their sexual orientation, contributes to the deterioration of their health.

Ritter next reviews pertinent provisions of the NHRA.  This legislation regulates nursing homes that receive federal funds by establishing a residents’ bill of rights and requiring nursing home to maximize the welfare of each patient.  Ritter argues the NHRA should be reformed to add a statutory right of nondiscrimination based on sexual orientation and gender identity, to require nursing aides to undergo sensitivity training, and to diminish the discretion of the Secretary to decide whether to issue penalties to nursing homes that violate the NHRA’s proscriptions.  Doing so would not only improve the relationships between queer elders and their nursing aides, but also improve the quality of care these residents receive.

I’m a Laycockian! (For the Most Part)

Jay Wexler

89 Texas L. Rev. 935

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In this lighthearted piece, Wexler reviews the first volume of Douglas Laycock’s collected works, which contains roughly forty pieces that he wrote between 1985 and 2009.

On nearly every issue presented in the volume, Wexler finds himself on common ground with Laycock.  For example, they both believe that religious believers should have robust exemption rights from general laws under the Free Exercise Clause.  Moreover, Wexler notes that neither of them believes in God but also that what one believes about God should have no effect on how one interprets the First Amendment.

Wexler does have some reservations about a number of Laycock’s most important points.  One of Laycock’s most important contributions to the field has to do with the concept of “neutrality.”  Laycock pointed out that there are two main types of neutrality.  “Formal neutrality” means government cannot utilize religion as a standard for action or inaction.  “Substantive neutrality” means that the Religion Clauses require government to minimize the extent to which it either encourages or discourages religious views and practices.  Wexler remains unconvinced that neutrality should be used at all when talking about the Religion Clauses.  In his view, Laycock’s concept of substantive neutrality may not seem enough like what we generally think of as the core meaning of neutrality in order to justify calling it neutrality.

In light of this and other considerations, Wexler suggests reformulating substantive neutrality to mean that government must minimize the effects of its actions on private religious choices, unless it has a compelling interest and unless it is taking positions on contested issues that will have potentially significant effects on some religions.  Although this would not be as simple a formulation as “substantive neutrality,” Wexler argues that it would help eliminate the confusion surrounding the concept.

Wexler wonders, however, whether it might have been better to put together a shorter, fully original book setting out Laycock’s views on religious liberty and the First Amendment for the general public.  Whether or not such a book is in the future, Wexler finds the current volume to be a great accomplishment.

The Ancients Among Us

Russel Muirhead

89 Texas L. Rev. 671

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Unlike the progressive history of science, in which superior theories supersede those that came before, Professor Muirhead states that both Professors Abramson and Sandel reject this position as to the history of politics. For them, the history of political philosophy is not entirely historical. Neither believes that Aristotle’s Politics has been “refuted.”

According to Muirhead, this is problematic. For example, because Athenian democracy was predicated on slavery, anyone who looks to ancient democracy as a model has something to explain at the outset. Viewing the debate between ancient and modern as a live one reopens these foundational questions, but, for Muirhead, it is a mark of progress that we do not have to argue these points anew.

Of course, Muirhead notes, this is not what Abramson or Sandel intend. Instead they implicitly embrace the achievements of political modernity. So, asks Muirhead, why do both thinkers regard ancient political thought as alive? Muirhead finds that Abramson’s history of western political thought invites them simply to think. The intention is not to have them reach a certain political understanding but to acquire political maturity.

Justice, meanwhile, is not a survey of political thought but an attempt to clarify and to criticize liberalism. Its foundational assumptions are natural freedom and equality, and, in light of these, liberal states hesitate to use law to enforce or uphold any particular conception of the good life. Sandel examines the two sides of this modern moral philosophy: consequentialism and rights-based morality. Like Abramson, writes Muirhead, Sandel cares more about equipping his readers to make their own case than he cares about persuading them of his. What Sandel calls on us to do, notes Muirhead, has never quite been done: a vast and heterogeneous population of political equals deliberating respectfully about the good life—and coming to a broad agreement about the ideals that inform our laws to give the laws legitimacy.

Indian Arbitration and “Public Policy”

Amelia C. Rendeiro

89 Texas L. Rev. 699

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In this Note, Ms. Rendeiro analyzes Indian public policy as applied to arbitral awards. The author first situates India’s statutory scheme and case law in light of international criticism and a limited national defense of measures perceived to be protectionist. Rendeiro introduces the economic history of post-colonial India, from its failed efforts to create a socialistic democracy through protective economic regulations to its eventual relaxation of foreign investment regulation and privatizing of much of the economy. More recently, India has become one of the most attractive investment destinations in the world. India’s arbitration laws have likewise advanced, explains Rendeiro. The adoption of the UNCITRAL Model Law in the 1990s was an effort to harmonize Indian arbitration law with that of other nations, although applying it to domestic disputes, as India has done, has been a source of criticism.

The majority view holds that Indian arbitration law is pro-arbitration to attract business and investment. The minority view, meanwhile, prefers to leave the courts some power to intervene in the process, as this will protect parties with weaker bargaining power, including Indian parties in international commercial disputes.

Rendeiro, analyzing these two paradigms, argues that they can be reconciled, allowing India’s legal scheme to attract foreign investors and encourage development while maintaining limited protectionist measures to ensure procedural and substantive fairness for Indian parties. She first looks at the public policy exception in India’s arbitration statute. Rendeiro proceeds to defend, on legal and practical grounds, India’s interpretation of the exception. However, Rendeiro finds that problems have arisen since the Indian Supreme Court extended the application of the public policy exception, which was originally applied only in the domestic context, to international commercial arbitrations held outside of India.

In conclusion, Rendeiro finds that the desires for arbitration to attract foreign investment and to provide Indian parties with an equitable dispute resolution mechanism are reconcilable through certain reforms.

How Much is an Illegal Immigrant‘s Life Worth?

Mark J Tindall

89 Texas L. Rev. 729

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In this Note, Mr. Tindall addresses federal preemption of wrongful-death suits on behalf of illegal immigrants in Texas. Given the large number of illegal immigrants and the hazardous employment that they often find, there is a high likelihood that beneficiaries of illegal immigrants will bring wrongful-death lawsuits. Most damages resulting from such suits are based on the decedent’s lost earning capacity. But the decedent’s illegal immigrant status may bar an award of lost earning capacity, as defendants can raise this as a preemption defense. However, Tindall finds that existing federal immigration statutes, case law, and general preemption principles offer a possible solution.

To develop a more complete picture, Tindall looks at three recent Supreme Court cases. In these cases, the Court shifts from implied preemption, which, according to Tindall, suggests that it would not find a state tort claim preempted. So, to determine whether the Texas Wrongful Death Act (WDA) has been preempted, he argues for a two-pronged preemption test. Does the WDA create an obstacle for federal law (namely, the Immigration Reform and Control Act of 1986) and federal policy? And, if a conflict exists, does federal law preempt the WDA? Finally, according to this analysis, Tindall concludes that the Supreme Court would not hold that federal law preempts the Texas Wrongful Death Act. Rather, the Court’s reasoning will most likely split between answering the two questions of the two-pronged test.

Socratic Temptations

Michael J. Sandel

89 Texas L. Rev. 687

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In Minerva’s Owl, Professor Abramson presents an account of the tradition of Western political thought. Professor Sandel finds that the distinctive appeal of Abramson’s book is the conflict between two rival ways of thinking about politics. The first, associated with an ancient way of thinking, holds that politics should seek to cultivate virtue and promote the good life. The second view rejects state affirmation of any particular conception of the good life.

Abramson, writes Sandel, leans toward the modern viewpoint as he worries that a politics of virtue is a judgmental politics, at odds with democracy and individual choice. However, he is also drawn towards the idea that politics should aim at higher ideals than toleration and choice.

To illustrate, Abramson discusses Socrates’ moral and political vision and how his engagement with Socrates’ work has changed over time. He then turns toward modern political thinkers, such as Hobbes and Locke, which he finds disappointing, each in their own way. As it turns out, Abramson’s favorite modern political thinker is Rousseau, who, notes Sandel, is arguably the least liberal.