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 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.

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.