The Invisible Barrier: Issue Exhaustion as a Threat to Pluralism in Administrative Rulemaking

Gabriel H. Markoff

90 Texas L. Rev. 1065

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In this Note, Mr. Gabriel Markoff argues that the doctrine of issue exhaustion may pose an unjustifiable barrier to diverse interest group participation in the administrative rulemaking process.  He first discusses the need for pluralistic participation in rulemakings and postulates that issue exhaustion exacerbates the well-known dominance of rulemaking participation by regulated parties.  After tracing the history of issue exhaustion, he presents an original survey of D.C. Circuit case law showing that issue exhaustion likely remains a highly effective barrier to judicial review by parties that do not submit comments in rulemaking comment periods.  Next, Mr. Markoff argues that issue exhaustion renders toothless the concerns of public interest groups, small businesses, and other poorly financed groups that do not have the financial means to submit detailed, technical comments in rulemakings.  This, he argues, is because agencies only listen to those parties who can use their ability to seek judicial review as leverage to negotiate favorable rule content and interpretations.  Mr. Markoff concludes by proposing that issue exhaustion be modified from a bright-line bar against review to a presumption in favor of allowing judicial review, one which could be rebutted by a showing of adequate participation or bad faith on the part of the party seeking review.

Three Strikes and You‘re In: Why the States Need Domestic Violence Databases

Joyce Y. Young

90 Texas L. Rev. 771

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Domestic violence entered the public consciousness during the 1970s, and activists’ demands for attention and redress since then have brought about many changes in the law’s response to abuse within the family. This Note examines the beginning of what may become a new trend in legal responses to domestic violence: legislation establishing databases or registries of domestic abusers. Though no law has yet been passed to create such a database, several states have proposed variations of it. This Note examines Texas and New York, two states in which these databases were recently proposed, as model jurisdictions for analyzing the databases’ possible pros and cons. It first discusses feminist goals in the reformation of legal responses to domestic violence and concludes that a statewide database is a necessary and effective way of continuing the reform effort. It then appraises the possible criticisms that such a database would face and proposes a solution based on a preexisting program that many states already implement. Finally, it delves into the question of cost and posits that the benefits derived from a domestic violence database would greatly outweigh any monetary burdens it might impose.

Predicting Violence

Shima Baradaran & Frank L. McIntyre

90 Texas L. Rev. 497

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The last several years have seen a marked rise in state and federal pretrial detention rates. There has been very little scholarly analysis of whether increased detention is reducing crime, and the discussion that has taken place has largely relied on small-scale local studies with conflicting results. This Article asks whether the United States is making substantially mistaken judgments about who is likely to commit crimes while on pretrial release and whether we are detaining the right people. Relying on the largest dataset of pretrial defendants in the United States, this Article determines what factors, if any, are relevant to predicting “dangerousness” pretrial and what percentage of defendants can be released safely before trial. Prior work in this area disagrees as to whether the current charge or past convictions are relevant predictors of future crimes, whether flight risk is linked to pretrial violence, and whether judges can accurately predict which defendants are dangerous. This Article— for the first time—relies on empirical methods and a nationally representative fifteen-year dataset of over 100,000 defendants to determine what factors are reliable predictors of who will commit pretrial crime. This analysis suggests two important conclusions: First, judges often detain the wrong people. Judges often overhold older defendants, defendants with clean records, and defendants charged with fraud and public-order offenses. Second, using our  model, judges would be able to release 25% more defendants while decreasing both violent crime and total pretrial crime rates.

The Case for “Trial by Formula”

Alexandra D. Lahav

90 Texas L. Rev. 571

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The civil justice system tolerates inconsistent outcomes in cases brought by similarly situated litigants. One reason for this is that in cases such as Wal-Mart Stores, Inc. v. Dukes,1 the Supreme Court has increasingly emphasized liberty over equality. Litigants’ right to a “day in court” has overshadowed their right to equal treatment. However, an emerging jurisprudence at the district court level is asserting the importance of what this Article calls “outcome equality”—similar results reached in similar cases. Taking the example of mass tort litigation, this Article explains how innovative procedures such as sampling are a solution to the problem of inconsistent outcomes. Outcome equality, achieved through statistical adjudication, is gaining force on the ground. Despite the Supreme Court’s principled stance in favor of liberty in a series of recent opinions, a victory for outcome equality is good for our civil justice system.

To date, the discussion about civil-litigation reform has focused on the conflict between the individual’s right to participation and society’s interest in the efficient disposition of the great volume of outstanding litigation. This conflict is real and is particularly troublesome in mass torts, where tens of thousands of plaintiffs file related cases, making it impossible for the courts to hold a hearing for each claimant. But the fixation on this conflict ignores the fact that an individual’s right to equal treatment is also a critical value and can conflict with the individual’s right to participation. This Article reframes the debate about procedural justice in the mass tort context as a conflict between liberty and equality rather than liberty and efficiency. The rights at stake are not only the individual’s right to a day in court to pursue his claim as he wishes, but also the right to be treated as others in similar circumstances are treated.
This Article defends district court attempts to achieve equality among litigants by adopting statistical methods and advocates greater rigor in the use of these methods so that courts can more effectively promote outcome equality.

Fidelity to Community: A Defense of Community Lawyering

Anthony V. Alfieri

90 Texas L. Rev. 635

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This Review offers an ethical defense of community lawyering against the backdrop of W. Bradley Wendel’s important new book, Lawyers and Fidelity to Law.  Alfieri feels that by defending a theory of legal ethics that places fidelity to law instead of client or community interests at the core of lawyers’ obligations, Wendel seeks to rehabilitate the idea of legitimacy as a normative ideal for lawyers and to channel lawyers into a formal, procedural system of advocacy and counseling largely independent of substantive-justice objectives.  He argues that Wendel’s transformation of the evaluative framework of legal ethics from the concerns of ordinary morality and substantive justice to the considerations of political legitimacy and process-oriented legality exposes community lawyers to new terms of  normative criticism and erodes the justification of their crucial work in American law and society.

Fidelity to Law and the Moral Pluralism Premise

Katherine R. Kruse

90 Texas L. Rev. 657

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In Fidelity to Law, Wendel presents and defends such a comprehensive theory of lawyering with two interrelated arguments: a functional argument that law deserves respect because of its capacity to settle normative controversy in a morally pluralistic society and a normative argument that law deserves respect because democratic lawmaking processes respect the equality and dignity of citizens. Professor Kruse’s review focuses on one of the links in the chain of Wendel’s normative-all-the-way-down argument: his move from the premise of moral pluralism to his conclusion that the function of law is to settle normative controversy in society.  Kruse questions Wendel’s move on both practical and theoretical grounds.   While Wendel argues that we need to settle such controversies so that we can move on and organize our affairs despite our deep disagreement about values, Kruse argues that efforts to unsettle law need not be seen as a threat, and that the continual ebb and flow of normative controversy should be viewed as an incident of — rather than an impediment to — a free and just society.

Misplaced Fidelity

David Luban

90 Texas L. Rev. 673

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In his review of W. Bradley Wendel’s Lawyers and Fidelity to Law, Professor David Luban classifies the book as a major work that deserves careful study.  However, he finds Wendel’s position to be one of “decency at odds with itself.” He points out that Wendel recognizes deep problems in our legal  institutions, and yet advocates near absolute obedience to that authority.  After examining the inconsistency in Wendel’s approach, Luban concludes that while fidelity to law is a virtue, it is no substitute for conscience.

Authoritarian Legal Ethics: Bradley Wendel and the Positivist Turn

William H. Simon

90 Texas L. Rev. 709

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In his Review of Bradley Wendel’s Lawyers and Fidelity to Law, Professor Simon addresses the authoritarian theme that he identifies as persistent throughout the book. He argues that neither libertarianism nor authoritarianism is a plausible starting point for a general approach to legal ethics.  Further, he feels that in gesturing toward positivism and surrendering to less reflective authoritarian  impulses, Wendel’s argument underestimates the extent to which social order depends on informal as well as formal norms and adopts a utopian attitude toward constituted power.  He concludes that the book treats as analytical propositions what are in fact empirical assertions for which Wendel has no evidence.