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.

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.