Forum Non Conveniens and Foreign Policy: Time for Congressional Intervention?

Sidney K. Smith

90 Texas L. Rev. 743

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This Note proposes that Congress should enact a federal standard of forum non conveniens that would preempt state forum non conveniens law in transnational cases. A legislative standard of forum non conveniens would clarify the federal doctrine and assist in resolving the myriad circuit splits surrounding forum non conveniens in federal court. Additionally, the federal standard would preempt state forum non conveniens law in transnational cases, creating uniformity between the state and federal courts. Not only
would a uniform standard limit the endless forum jockeying of both plaintiffs and defendants in these cases, it would also allow more federal control over cases that potentially implicate important foreign-relations issues.

Moral Rights: Well-Intentioned Protection and Its Unintended Consequences

Lindsey A. Mills

90 Texas L. Rev. 443

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Lindsey A. Mills analyzes the issues and implications surrounding Congress’s enactment of the Visual Artists Rights Act (VARA) in 1990, which, inter alia, provides moral rights protection to creators of artistic work. Although Mills recognizes certain social benefits associated with the protection of moral rights, particularly the incentives to promote artistic creation and society’s right to preserve irreplaceable works of art, she argues that such a law, by taking away ownership rights that purchasers of artwork would otherwise have, diminishes the economic value of the artwork in question and further, to the extent that artistic expression is deemed desirable, harms society as a whole. After weighing these interests against each other, she concludes that moral rights protection has no place in the United States, let alone as part of the Copyright Act.

Not Like an Egyptian: Cybersecurity and the Internet Kill Switch Debate

Karson K. Thompson

90 Texas L. Rev. 465

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In this Note, Mr. Karson Thompson explores the vulnerability of America’s internet networks and the various proposals that have been made to solve the cybersecurity problem. Thompson explores the history of the Internet—from its inception as ARPANET to its current status—and the major security issues that plague it.   He then discusses the role played in maintaining internet security by both the executive and legislative branches of government and proposes a new framework—one that takes power away from the executive as a means of ensuring a stable and transparent cybersecurity policy. Thompson concludes that the existing framework is an ineffective way of ensuring the security of the Internet, and recent events in Egypt should provide an impetus for reform.

Predicting Patent Litigation

Colleen V. Chien

90 Texas L. Rev. 283

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In this article, Professor Colleen Chien examines if, and to what extent, a patent’s acquired characteristics can be used to determine whether that patent is likely to end up in litigation. Although only around 1% of patents are ever litigated, patent lawsuits are disruptive and costly. Furthermore, their unpredictability makes patent litigation a practically uninsurable risk, causing companies to expend valuable resources accumulating patents that they believe might be asserted against them in the hope of preventing future litigation. To determine whether a patent’s acquired characteristics—those qualities that a patent develops after its issuance—can be used to enhance the predictability of patent litigation, Chien examines the relationship between eventual litigation and several acquired characteristics: changes in ownership, continued investment in the patent by the owner, collateralization, and citation to the patent.

Finding that litigated patents have markedly different acquired characteristics than unlitigated patents along all dimensions studied, and that these characteristics develop prior to litigation, Chien argues that acquired characteristics can be used to develop models that will enhance the predictability of patent litigation. She also asserts that, by highlighting the relationship between a patent owner’s identity and the likelihood of patent litigation, her findings argue in favor of reforming the patent-notice system to provide better information regarding patent ownership and transfer status in order to enhance the predictability of patent litigation.

Substituting Substantive for Procedural Review of Guidance Documents

Mark Seidenfeld

90 Texas L. Rev. 331

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In this Article, Professor Seidenfeld looks at issues concerning how federal agencies issue interpretive rules and policies and how courts respond to such documents. Seidenfeld looks at how scholarship has focused on procedural impediments to the issuance of guidance documents. While he concludes that those who favor giving agencies more leeway to use them have the better argument, this argument is incomplete. While a number of scholars have attempted to transcend the debate and have suggested solutions to agency abuse that do not depend on courts finding defects in agency procedures, Professor Seidenfeld argues that these solutions are also imperfect.

Instead, Seidenfeld proposes to shift the debate from one of procedural requirements to one of substantive review, concluding that this approach preserves agency flexibility and encourages agencies to still solicit outside input.

The Failings of Education Reform and the Promise of Integration

Wendy Parker

90 Texas L. Rev. 395

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Professor Parker reviews Five Miles Away, A World Apart by Professor James E. Ryan.  That book examines the persistence of de facto segregation in modern American schools. In this review, Parker summarizes the problems with current education policy that Ryan identifies.  Specifically, she observes how policy makers have taken a “save the city, spare the suburbs” approach to educational reform which has resulted in widening racial and economic disparities between urban and suburban schools. Though Parker recognizes that these policies have harmed urban educational outcomes, she is critical of Ryan’s proposed reform, which calls for implementing a parental-choice voucher system in less affluent school districts. Parker argues that Ryan’s proposal shifts too much responsibility for reintegration to parents and assumes that most parents will have the forethought to value the common good when making decisions about education. Though Parker lauds Ryan’s proposal as “compelling,” her review provides a measure of balanced skepticism against Ryan’s proposal.

Making Room in the Property Canon

Bela August Walker

90 Texas L. Rev. 423

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Professor Walker reviews Integrating Spaces: Property Law and Race, by Professors Brophy, Lopez, and Murray. Professor Walker explores how the book addresses a major problem with most property curriculum—while race is a major issue in property law, it is unaddressed in law school curricula. While Walker commends this monumental effort to confront the intersection of property law and race, she criticizes it slightly for its omission of Cheryl Harris’s Whiteness as Property and its lack of discussion of the concept of whiteness at all. Walker concludes that while this book is an excellent resource and could contribute to any property course, in an ideal world, it would be unnecessary, as such topics would already be a part of a first-year property curriculum.

The Pretend Solution: An Empirical Study of Bankruptcy Outcomes

Katherine Porter

90 Texas L. Rev. 103

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Professor Katherine Porter examines whether the one-in-three discharge rate realized in Chapter 13 bankruptcies suggests that Chapter 13 may not be the consumer protection triumph that most bankruptcy experts and legal commentators tout it to be. Porter analyzes the results of an empirical study in which she interviewed debtors who were unable to obtain a Chapter 13 discharge in order to determine whether Chapter 13 dismissals should be considered “successful” outcomes for Chapter 13 debtors. The results show that most debtors whose Chapter 13 cases were dismissed did not achieve the goals they had when filing for bankruptcy and did not reach a permanent solution to their financial distress; nevertheless, a staggering 83% of families she interviewed reported that filing bankruptcy was “a very good or somewhat good decision,” blaming their failure to reach discharge on themselves, their attorneys, or their bankruptcy trustees rather than on the bankruptcy system itself. Porter argues that the reluctance of debtors and policy makers to criticize the bankruptcy system is derived from the fact that Chapter 13 is a “pretend solution”—a social program that does not work, but that is not critiqued or reformed because its flaws are hidden. Porter utilizes the results of her study to propose an overhaul of the existing consumer bankruptcy framework that would trade the current system of broad consumer choice for a simpler, outcome-oriented system of “rough justice.” She concludes by using the lessons learned through her Chapter 13 analysis to identify five characteristics of pretend solutions and to expound upon an approach to policy design that promises to transform pretend solutions into actual solutions.

On Citation and Dialogue: Thoughts on Inga Markovits, Justice in Lifritz

Leora Auslander

90 Texas L. Rev. 163

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Professor Auslander reviews Inga Markovits’s book, Justice in Lüritz: Experiencing Socialist Law in East Germany. As the title indicates, the book sets out to account for the workings of the law under socialist governance in the German Democratic Republic.  Auslander focuses her review on two features of the book that make it unique and significant. The first is a lack of direct references to primary sources. While maybe to the chagrin of traditional historians, Auslander notes that adherence to strict citation practice is not appropriate for the type of study that Markovits engages in; rather, since the purpose of Justice in Lüritz is to convey how people experienced the legal system, the appropriate analogy is to sociology and anthropology—two fields where direct citations to primary sources are often unavailable. Further, had Markovits limited herself to sources that could have been “properly documented,” Auslander argues our understanding of East German law would have been greatly diminished.

The second feature that Auslander notes is the book’s apparent indifference to other scholarly works. Rather than set out to prove another scholar wrong, or even contribute to the scholarly debate, the book emerges very powerfully as the product of individual curiosity and determination. Auslander believes that by taking this approach, Markovits not only avoided potential pitfalls that often emerge in academic writing but also enabled her book to speak to a broader audience. While Auslander does regret some of the implications of this approach, she concludes that Justice in Lüritz succeeds in providing an extraordinarily vivid and complex picture of how people experienced socialist law in East Germany.

The Magic Mailbox of Inga Markovits

Lawrence M Friedman

90 Texas L. Rev. 177

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Professor Friedman reviews Inga Markovits’s Justice in Lüritz: Experiencing Socialist Law in East Germany. Friedman observes how Markovits, an individual who dedicated her early career to the law of the German Democratic Republic, had her field simply vanish. Fortunately for Markovits, she discovered the records of the work of a lower court in a small town in Germany, which she refers to as Lüritz. Friedman describes the profound wealth of information that Markovits was able to glean from these records and present in her book, mixing qualitative and quantitative analyses. Friedman concludes that this book stands out among others regarding socialist law and has few equals in the field of law and society.