Party Rulemaking: Making Personal Rules Through Party Choice

Robert G. Bone
90 Texas L. Rev. 1329

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Procedural rules have different sources and are made in different ways.  Some boast a constitutional pedigree, while others are legislatively created.  Some, such as the Federal Rules of Civil Procedure, are the product of a formal committee-based rulemaking process, while others are rooted in the common law or the rulemaking of local courts.  In this article, Professor Robert Bone explores yet another source of procedural rules: party rulemaking.  Party rulemaking involves parties choosing general procedural rules for their lawsuits by agreement.  Today, the latitude given to party rulemaking is quite limited in adjudication, even though it is very broad in arbitration.  For example, parties can contract for discovery rules in civil cases, but it is not clear that they can alter otherwise applicable pleading rules, joinder rules, summary judgment rules, and so on.  The scope of party rulemaking has been the subject of intense debate in recent years.  Some scholars favor an expansive approach, one that would turn many of the officially promulgated rules into defaults.  Others urge much stricter limits.  Yet arguments on both sides of the debate are incomplete and rather weak in important respects.  For example, they fail to appreciate the difficulty of evaluating costs and benefits in the highly strategic environment of litigation, and when they discuss the impact of party rulemaking on adjudicative legitimacy, they tend to rely on perceived legitimacy and ignore the importance of normative legitimacy.

In this article, Bone takes a close look at this debate.  He critically examines the conventional arguments for and against party rulemaking and evaluates the balance of costs and benefits from utilitarian and rights-based perspectives.  He concludes that the cost-benefit case against party rulemaking is unpersuasive except in certain cases, and he identifies three limited scenarios that justify judicial restraint in enforcing agreements.  He then turns to arguments from adjudicative legitimacy, those that claim that broad party rulemaking licenses illegitimate departures from the way civil adjudication should be conducted.   Arguments of this type require a theory of adjudication that is capable of identifying core elements essential to the institution’s legitimacy.  In the case of American civil adjudication, he argues, the core elements have to do with an institutional commitment to a distinctive mode of principled reasoning.   It follows that the most troubling examples of party rulemaking are those that tinker with procedures that frame, guide, or incentivize this reasoning process.  In the end, Bone concludes that while some important aspects of procedure should be off limits to party rulemaking, parties in general should have broader freedom to fashion their own procedural rules than they do today.

Injunctions as More (or Less) than “Off Switches”: Patent-Infringement Injunctions’ Scope

John M. Golden
90 Texas L. Rev. 1399

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Injunctions have often been viewed as mere “off switches” that prevent future violations of rights protected by so-called property rules.  But injunctions in fact come in a variety of forms, with different objects, scopes, and degrees of effectiveness.  In practical situations, an injunction might amount to little more than a threat of higher-than-normal monetary sanctions delivered at substantially higher-than-normal speed.

This Article builds on these insights by investigating the potential and actual scopes of injunctions against patent infringement.  An economic model for infringer incentives shows how concerns of injunction scope are substantially analogous to widely examined concerns of patent scope.  A new taxonomy provides named classifications for different forms of injunctions.  A systematic study of patent-infringement injunctions issued by U.S. district courts in 2010 indicates how often these different forms appear in practice.  Startlingly, this study suggests that the majority of such patent-infringement injunctions take an “obey the law” form that violates the Federal Rules of Civil Procedure, at least as the U.S. Court of Appeals for the Federal Circuit has traditionally understood those rules.  In another indication of patent law’s technology specificity, only 12% of the injunctions directed to biomedical-substance technology feature such error.  Meanwhile, courts frequently issue specially tailored injunctions that protect patent rights more or less than a conventional “do not infringe” order would.  Prophylactic injunctions and other specially tailored injunctions should be recognized as legitimate forms of relief that can enable better balancing of concerns of notice, rights protection, rights limitation, and administrability.

Still Convicting the Innocent

Jennifer E. Laurin
90 Texas L. Rev. 1473

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In Jennifer E. Laurin’s book review, Still Convicting the Innocent, she discusses Brandon L. Garrett’s Convicting the Innocent: Where Criminal Prosecutions Go Wrong.  She starts by giving a brief overview of Convicting the Innocent, and identifies and contextualizes  the book’s major contributions to the extant literature on wrongful convictions.  She later discusses several ways in which the book, though a significant and important effort, falls short of fulfilling certain aspects of its descriptive and prescriptive agendas.

Constructing a Canon of Law-Related Poetry

Alexandra J. Roberts
90 Texas L. Rev. 1507

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Law and poetry make a potent, if surprising, pair.  Poetry thrives on simultaneity and open-endedness, while legal writing aspires to resolve issues decisively, whether it advocates or adjudges.  The law and literature movement has traditionally focused either on law as literature, applying literary theory and techniques to legal texts such as judicial opinions and legislation, or law in literature, i.e., law as portrayed in literary and artistic works.  Poetry and poetics have garnered relatively little attention under either approach.  While some scholars blame that omission on a supposed dearth of law-related poetry, the poems collected in Kader and Stanford’s Poetry of the Law: From Chaucer to the Present belie that claim.  This essay considers the place of poetry in legal studies and advocates incorporating it into both the dialogue and the curriculum of the law and literature movement.  It identifies themes that emerge from the juxtaposition of the poems in the anthology, examines the relationship of fixed-verse forms to law in the poems, and draws attention to those voices that are underrepresented in the collection and the movement.  It relies primarily on the process of close reading several of the hundred poems included in POETRY OF THE LAW and, in so doing, it practices law in literature while it models precisely the type of critical approach that would serve those participating in the study of law as literature.  It prescribes a canon of law-related poetry and illustrates how the inclusion of poems and techniques of poetic interpretation stand to benefit students, lawyers, and theorists alike.

Monetary Damages and the (b)(2) Class Action: A Closer Look at Wal-Mart v. Dukes

Neil K. Gehlawat
90 Texas L. Rev. 1535

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In his note, Monetary Damages and the (b)(2) Class Action: A Closer Look at Wal-Mart v. Dukes, Neil K. Gehlawat explores the Supreme Court’s ruling in Wal-Mart v. Dukes as to the circumstances, if any, under which a plaintiff class could recover monetary damages in a Rule 23(b)(2) class action. He argues that scholarship focusing on competing interpretations of the “predominance” language in the Advisory Committee’s Note to Rule 23(b)(2) is misconceived because it overlooks the normative policies that underlie Rule 23(b)(2).  Gehlawat begins by examining the procedural requirements of Rule 23 and then briefly reviews the Supreme Court’s recent decision as well as existing case law and scholarship on the issue of monetary damages in (b)(2) class actions.  He then identifies the competing policies at stake in (b)(2) class actions—the right to individual participation and the need for remedial efficacy—and contrasts them with the competing policies that underlie (b)(3) class actions.  He concludes by considering whether particular damage remedies are appropriate in (b)(2) class actions in light of these competing policies.

Would You Want William Hung as Your Trier of Fact? The Case for a Specialized Musicology Tribunal

Eric M. Leventhal
90 Texas L. Rev. 1557

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Eric M. Leventhal’s note, Would You Want William Hung as Your Trier of Facts? The Case for a Specialized Musicology Tribunal, suggests a complete reform of the present judicial treatment of musical copyright infringement cases by advocating the formation of academically constituted music tribunals.  After reviewing the history of musical copyright infringement cases, he addresses why musical copyrights are worthy of special analysis, separate and distinct from other enumerated works.  He then delves into the academic, logistical, and procedural failures of the present legal treatment of musical copyrights before outlining a solution and the rationales for its immediate implementation.

From the Streets to the Courts: Doing Grassroots Legal History of the Civil Rights Era

Ariela J. Gross
90 Texas L. Rev. 1233

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Professor Ariela J. Gross reviews Tomiko Brown-Nagin’s Courage to Dissent: Atlanta and the Long History of the Civil Rights Movement.  Gross views Brown-Nagin’s work as a valuable alternative view to the one-sidedness of most legal histories of the civil rights movement, most of which have focused disproportionately on Brown v. Board of Education.  Gross praises Brown-Nagin for illuminating the once-taboo conflicts within the black activist community during the civil rights era.  In addition, Gross addresses Brown-Nagin’s coverage of the grassroots movement to oppose civil rights, and suggests that these two stories must go hand in hand to truly understand the civil rights era and rewrite the standard narrative of Brown and its aftermath.

Picking on the Little Guy? Asserting Trademark Rights Against Fans, Emulators, and Enthusiasts

David E. Armendariz
90 Texas L. Rev. 1259

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Mr. David E. Armendariz addresses the phenomenon of trademark owners asserting their trademark rights against what he calls fans, emulators, and enthusiasts—groups that use the mark not to create a separate brand identity of their own but rather to show their support for or imitate the original brand owner.  Armendariz argues that, while trademark owners have good reasons for asserting these rights, such enforcement actions yield no benefit and may in some cases cause harm.  Armendariz’s solution to this phenomenon is a change in the incentives for trademark owners, in which owners would at least not be encouraged to pursue enforcement actions that benefit no one and may in fact be damaging.  Armendariz proposes two methods of achieving this change in incentives: (1) ensuring that the doctrines of acquiescence and laches do not attach unless there is a risk of significant harm to the original owner’s interests, and (2) assessing the factors of confusion and dilution differently in enforcement actions against fans, emulators, and enthusiasts.

Qualified Immunity in the Fifth Circuit: Identifying the “Obvious” Hole in Clearly Established Law

Amelia A. Friedman

90 Texas L. Rev. 1283

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Ms. Amelia Friedman dissects the clearly-established-law requirement in the qualified immunity doctrine in Section 1983 cases.  Friedman introduces the idea of the obvious case—in which precedents demonstrate a rule clear enough to put an officer on notice, even in the absence of directly similar facts—and argues that courts should incorporate it into the doctrine of qualified immunity in order to more fairly balance the interests of plaintiffs and public-official defendants in Section 1983 cases.  While Friedman notes that a workable standard for the obvious case has yet to be developed, she contends that, in light of the Fifth Circuit approach, the failure to account for obvious cases unfairly shields officials from liability when they have clearly violated constitutional rights.