Talk Derby to Me: Intellectual Property Norms Governing Roller Derby Pseudonyms

David Fagundes
90 Texas L. Rev. 1093

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Professor David Fagundes conducts an empirical study on how intellectual property is protected via social norms, rather than formal law, in the world of roller derby.  Fagundes delves into rule structure, registration system, and governance regimes that roller derby skaters have organically developed to protect the pseudonyms that they use in the rink.  Based on his findings, Fagundes asserts that IP norms emerge independently of the substantive law when the relevant group is close-knit and the norms are welfare enhancing.  He also suggests an alternative way of thinking about the problem of supplying property systems, casts doubt on the coherence of the prevailing neoclassical economic assumptions underlying IP law, and reflects on what it means for rules to be law.

The Myth of the Customary Law Merchant

Emily Kadens
90 Texas L. Rev. 1153

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Professor Emily Kadens counters the argument that the customary law merchant, uniformly and universally adopted across Europe, facilitated international trade.  Professor Kadens attacks two fundamental principles of this law merchant myth: that uniform and universal customary merchant law could have existed and that merchants needed it to exist.  Instead, Professor Kadens argues that merchants largely applied their own customs in medieval commercial transactions but that this usage did not hamper international trade because intermediaries such as brokers ensured that medieval merchants had no need for a transnational law.  Ultimately, Professor Kadens uses this argument to refute the assumption of many international commercial arbitrators and of Article Two of the Uniform Commercial Code that decision makers should look to merchant usage to decide disputes.

The Supreme Court‘s New Battlefield

Josh Blackman
90 Texas L. Rev. 1207

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Adam Winkler’s new book, Gunfight, tells the story of the battle over the right to bear arms in America.  The flow of Gunfight, which reads more like a page-turning novel than an academic work, can best be described as a finely designed tapestry—several intricately woven threads cross and intersect throughout the chapters to form a rich, full discourse of the story of gun rights and gun control in America.  The first thread tells the captivating story of District of Columbia v. Heller.  The second thread introduces the genesis of the modern-day gun control movement, pejoratively labeled by Winkler as the “gun grabbers,” who aspire for complete civilian disarmament.

The third thread explores the evolution of the so-called “gun nuts,” who instinctively oppose any limitation on the right to keep and bear arms, no matter how reasonable or sensible.  The extreme gun grabbers and gun nuts have declared the Second Amendment as the Supreme Court’s new battlefield: a sharp culture war divided along firmly entrenched ideological fronts, with no choice of a middle ground.  But as Winkler’s balanced, important, and timely work shows, this has not always been the case in America.

The fourth thread—and really the vein that circulates Winkler’s thesis throughout the work—is the relationship between gun rights and gun control in the American tradition.  This balance has ebbed and flowed along with numerous social movements in our nation’s history: from Revolution, to Reconstruction, to the Frontier, to Prohibition, to the Civil Rights Era, to the present.

Though a fifth thread that threatens to unravel the entire tapestry is loose—what is the relevance of this history to the development of modern Second Amendment jurisprudence?—the Supreme Court, and not Winkler, is to blame for this shortfall.  Heller has set forth an uneasy temporal relationship between the original understanding of the Second Amendment—that is, how the right would have been understood at the time of its ratification in 1791—and the role that the two centuries of cultural and legal development that Winkler chronicles should play in the constitutionality of gun control laws.

Since Heller and McDonald v. City of Chicago, the lower courts have grappled with this question.  Winkler does not fully connect this history with the future, short of making the lamentable, though largely anachronistic, argument that “as the history of the right to bear arms and gun control shows, there is a middle ground in which gun rights and laws providing for public safety from gun violence can coexist.”

Winkler’s magisterial work is by far the fairest and most well-balanced book about gun control in America.  Winkler, better than any scholar today, can peel back the veneer of the heated rhetoric and drill to the core of what this issue is about—keeping society safe and minimizing harm from guns, while at the same time protecting the right of people to defend themselves.  With its appeal to both academic and popular audiences, Gunfight brings some much-needed clarity to the fog of the Supreme Court’s new battlefield.

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.

The Madisonian Constitution: Rightly Understood

Benjamin Kleinerman

90 Texas L. Rev. 943

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In his Review of The Executive Unbound: After the Madisonian Republic, Professor Benjamin Kleinerman agrees with Professors Eric Posner and Adrian Vermeule to the extent they point to a problem in our constitutional order: The executive is increasingly “unbound” insofar as Congress has continuously passed enabling legislation which promotes the executive’s complete freedom.  Kleinerman also agrees with their critique of legal liberalism’s hope to reestablish Congress’s supposed constitutional preeminence.  But Kleinerman disagrees with Posner and Vermeule when they implicitly cede to legal liberalism the claim that, constitutionally, Congress should be preeminent.  Kleinerman argues that liberal legalism’s characterization of the necessary preeminence of Congress over the President is a mischaracterization of our constitutional order.  Kleinerman concludes that the constitutional order depends upon three institutions actively engaged in political conflict over the scope of their powers, and Congress currently passes off its power to both the presidency and the courts.  Given that the constitutional order insulates those two institutions on the assumption that Congress will be too aggressive, perhaps we should rethink the constitutional order itself, Kleinerman argues.

The Goldilocks Executive

Saikrishna B. Prakash & Michael D. Ramsey

90 Texas L. Rev. 973

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In this Review, Professors Saikrishna B. Prakash & Michael D. Ramsey critique The Executive Unbound: After the Madisonian Republic’s central claim that we live in a post-Madisonian republic.  They argue that Professors Eric Posner and Adrian Vermeule have shown that the modern executive is much less bound by law than in the past, but they have not shown that the Executive is unbound by law, or that the Executive should be.  Prakash and Ramsey also consider The Executive Unbound as a normative argument for adopting a legally unbound executive, and it finds the case not proven.  Finally, the reviewers tentatively conclude that separation of powers and related constraints play an important role in creating a “Goldilocks Executive”: an executive neither much too strong nor much too weak, but about right.

Placing the Foreign Corrupt Practices Act on the Tracks in the Race for Amnesty

Stephen A. Fraser

90 Texas L. Rev. 1009

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In light of the lack of clarity and the high stakes of current enforcement of the Foreign Corrupt Practices Act, former enforcers and other FCPA practitioners are debating revisions to the Department of Justice’s enforcement policies.  In response to the debate, Stephen A. Fraser argues that an FCPA amnesty program would most successfully secure the economic and noneconomic interests of the DOJ and cooperating companies.  He first examines key features of the Antitrust Amnesty Program, which serves as a model for this FCPA amnesty proposal.  Fraser then describes the current policy of the DOJ toward companies that cooperate in FCPA investigations, identifying the unofficial, although frequent, practice of seeking a reduced sentence based on a company’s level of cooperation.  Finally, Fraser argues that a program with complete amnesty for companies and individuals that self-report FCPA violations best serves the monetary and nonmonetary interests of the DOJ and cooperating companies, whereas competing proposals do not.

Improving Tax Incentives for Historic Preservation

David J. Kohtz

90 Texas L. Rev. 1041

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Historic preservation laws are increasingly controversial, and their perceived unfairness has led to calls for their repeal.  In his note, David Kohtz argues that policymakers should condition tax incentives on some form of public access to efficiently produce the public benefits that justify the incentives.  He first examines the justifications for historic preservation tax incentives, concluding that public access is essential to effective incentive programs.  Next, he critically reviews public access provisions in selected statutes, focusing on access to private residences.  The programs provided by these statutes, he explains, fall into three categories: (1) physical access, (2) visual access, and (3) virtual access.  Kohtz concludes that it is only by providing at least one of these types of access that historic preservation tax incentives are justified.

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.