Bela August Walker
90 Texas L. Rev. 423
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.
90 Texas L. Rev. 103
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.
90 Texas L. Rev. 163
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.
Lawrence M Friedman
90 Texas L. Rev. 177
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.
Ian P. Farrell
90 Texas L. Rev. 187
Professor Farrell reviews and critiques Scott J. Shapiro’s Legality, which concerns analytical jurisprudence and seeks to develop an ambitious theory of law from the tradition of legal positivism. Farrell outlines Shapiro’s “Planning Theory of Law,” and engages in a critique of Shapiro, questioning whether Legality remedies the deficiencies in Shapiro’s earlier work and if it responds adequately to critiques of legal positivism. Farrell also concisely mirrors Shapiro’s overarching exploration of analytical jurisprudence and challenges Shapiro by arguing that there is great value in the field. Farrell concludes that Shapiro’s work contributes greatly to the field of analytical jurisprudence and illustrates the contribution it can make to legal scholarship.
Ryan M Goldstein
90 Texas L. Rev. 225
Mr. Goldstein identifies serious problems with the validity and reliability of forensic science and argues that these problems can best be rectified by state oversight. While agreeing with many of the criticisms and suggestions made in a 2009 National Academy of Sciences report on forensic science laboratories, Goldstein contends that states are better positioned than the federal government to reform forensic science practices due to states’ traditional oversight of criminal law and ability to experiment with reforms more easily than the federal government. Goldstein surveys current state-oversight mechanisms and proposes his own mechanism—an independent board of diverse stakeholders that handles quality control and budgeting while leaving investigations to an independent entity.
Michael T. Raupp
90 Texas L. Rev. 259
Mr. Raupp examines tort law’s indivisible injury doctrine, starting with a discussion of its background and development. He proceeds to explain the jury procedure for indivisible injury cases and to identify two important paradoxes that result from its use. Mr. Raupp’s analysis leads him to conclude that the indivisible injury doctrine should apply more narrowly, prospectively restricting the problems with its current application. vHe proposes that jurisdictions implement stricter requirements for employing the indivisible injury doctrine, and that they should give judges, in addition to juries, the chance to resolve matters before using the current indivisible injury rule.
Steven G. Calabresi & Julia T Rickert
90 Texas L. Rev. 1
Professor Calabresi and Ms. Rickert’s Article challenges the opinions of Justices Scalia and Ginsburg in United States v. Virginia, 518 U.S. 515 (1996) (and secondary literature that has considered the question), arguing that the original public meaning of the Fourteenth Amendment, as informed by the Nineteeth Amendment, bans discrimination based upon gender.
Gabriel L. Negretto
89 Texas L. Rev. 1777
Professor Negretto seeks to explain seemingly contradictory trends in constitutional design in Latin America. Professor Negretto argues that these trends reflect diverse governance problems and the varying interests of those who influence institutional selection. Professor Negretto identifies several reforms “intended to diffuse power and place limits on the partisan or government powers of presidents,” and these are contrasted with other reforms.
Part I begins by reviewing recent constitutional transformations in Latin America. Although Professor Negretto emphasizes that there is substantial variation in these reforms, he identifies several trends in their orientation. In the sphere of election rules, Professor Negretto identifies trends such as pluralistic rules for the election of deputies and presidents, personalized voting systems, and more permissive rules of presidential reelection. In the sphere of decision-making rules, the trends include greater restrictions on the government powers of presidents and stronger legislative powers for presidents.
In attempting to explain the contradictory nature of these trends, in Part II, Professor Negretto proposes a two-level theory of constitutional choice. This theory is an attempt to integrate cooperative theories and distributional models. Neither theory, according to Professor Negretto, sufficiently explains the constitutional choices seen in Latin America. According to his theory, “constitutional choice is endogenous to the performance of preexisting constitutional structures and to the partisan interests and relative power of reformers.”
Finally, in Part III, Professor Negretto applies his theory. He argues that “in the presence of distributive outcomes, strategic political actors always tend to propose or support alternatives of reform that, within the menu of options, are closer to their partisan interests.” He proposes that different results will occur depending on whether unilateral or multilateral assemblies are involved in the process. Additionally, reforms supported by different parties will be affected by their expectations for electoral power in the near future. It is Professor Negretto’s opinion that the study of reform coalitions needs to be complemented “with a process-tracing analysis of the sequence of events that cause constitutional reform and of the patterns of partisan competition that shape the expectations of the actors about their future positions.”
89 Texas L. Rev. 1517
Professor Couso examines constitutionalism in the context of “radical democracies.” Although Couso argues that sometimes these governments should not properly be called constitutional, they still sometimes contain institutions that promote traditional constitutional ideals, such as separation of powers, an independent judiciary, and freedom of expression.