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.

Using Financial Incentives to Achieve the Normative Goals of the FMLA

Kristin M. Malone

90 Texas L. Rev. 1307

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Ms. Kristin Malone asserts that the goal of the Family Medical Leave Act, producing a workforce that does not discriminate against women on the basis of presumed obligations to private-sphere responsibilities, has not been achieved in the two decades since it was passed.  Malone argues that the FMLA’s gender-neutrality, while created in an attempt to manufacture equality, entrenches gender differences by recreating and validating social and market incentives for women to shoulder the burden of family responsibilities.  Malone analyzes the legislative history and practical effects of the FMLA and concludes that financial incentives are necessary to reach the objectives of the FMLA when it was passed.  She proposes structural reform coupled with tax incentives for employers in order to vindicate the normative aims of the act.

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.

The Soldier, the State, and the Separation of Powers

Deborah N. Pearlstein

90 Texas L. Rev. 797

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The question of how to distinguish expert advice from undemocratic influence that has long surrounded the work of administrative agencies is made especially complex by the unique constitutional role of the military. Before one can tell whether civilian control is threatened, one must first have some understanding of what it is.  Yet for all the intense focus in recent years on the legality of what the military does, where the modern military fits in our constitutional democracy has remained remarkably undertheorized in legal scholarship. Moreover, prevailing theories of civilian control in the more developed social- and political-theory literature of civil–military affairs view the Constitution’s separation of powers—in particular, the allocation of authority over the military to more than one branch of government—as a fundamental impediment to the maintenance of civilian control as they take it to be defined.  As a result, there remains a significant gap in the development of a constitutional understanding of the meaning of civilian control.  This Article is Professor Pearlstein’s effort to begin filling that gap, by examining whether and how the constraining advice of military professionals may be consistent with our modern separation of powers scheme.

Undermining Congressional Overrides: The Hydra Problem in Statutory Interpretation

Deborah A. Widiss

90 Texas L. Rev. 859

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In this article, Professor Widiss examines congressional overrides and a problem she calls the “hydra problem.” First, she explores the challenge that overrides pose to the standard rule of precedent and defines the hydra problem.  She then discusses in detail the multistep conversation between the courts and Congress regarding the standard of causation in employment discrimination statutes and imagines an alternative version of the story to illustrate how the interpretative conventions courts use to interpret overrides improperly minimize the significance of Congressional interventions relative to judicial interpretations.  She also uses the rapid application of Gross v. FBL Financial Services, Inc. in other contexts and bills Congress has considered to override Gross to argue that the putative response that the Court indicates it expects from Congress is unreasonably difficult for Congress to achieve and could cause significant new problems. Finally, Professor Widiss argues that courts should instead adopt interpretive rules that more fairly respect the institutional realities of Congress because this would better permit overrides to play their expected role as a means for Congress to signal disagreement with judicial interpretations of statutes and promote the orderly and consistent development of statutory law.

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.