Katherine R. Kruse
90 Texas L. Rev. 657
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.
90 Texas L. Rev. 673
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.
Stephen L. Pepper
90 Texas L. Rev. 691
William H. Simon
90 Texas L. Rev. 709
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.
W. Bradley Wendel
90 Texas L. Rev. 727
Professor Wendel responds to five professors who critically reviewed his recent book, Lawyers and Fidelity to Law.
Sidney K. Smith
90 Texas L. Rev. 743
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.
Joyce Y. Young
90 Texas L. Rev. 771
Domestic violence entered the public consciousness during the 1970s, and activists’ demands for attention and redress since then have brought about many changes in the law’s response to abuse within the family. This Note examines the beginning of what may become a new trend in legal responses to domestic violence: legislation establishing databases or registries of domestic abusers. Though no law has yet been passed to create such a database, several states have proposed variations of it. This Note examines Texas and New York, two states in which these databases were recently proposed, as model jurisdictions for analyzing the databases’ possible pros and cons. It first discusses feminist goals in the reformation of legal responses to domestic violence and concludes that a statewide database is a necessary and effective way of continuing the reform effort. It then appraises the possible criticisms that such a database would face and proposes a solution based on a preexisting program that many states already implement. Finally, it delves into the question of cost and posits that the benefits derived from a domestic violence database would greatly outweigh any monetary burdens it might impose.
Shima Baradaran & Frank L. McIntyre
90 Texas L. Rev. 497
The last several years have seen a marked rise in state and federal pretrial detention rates. There has been very little scholarly analysis of whether increased detention is reducing crime, and the discussion that has taken place has largely relied on small-scale local studies with conflicting results. This Article asks whether the United States is making substantially mistaken judgments about who is likely to commit crimes while on pretrial release and whether we are detaining the right people. Relying on the largest dataset of pretrial defendants in the United States, this Article determines what factors, if any, are relevant to predicting “dangerousness” pretrial and what percentage of defendants can be released safely before trial. Prior work in this area disagrees as to whether the current charge or past convictions are relevant predictors of future crimes, whether flight risk is linked to pretrial violence, and whether judges can accurately predict which defendants are dangerous. This Article— for the first time—relies on empirical methods and a nationally representative fifteen-year dataset of over 100,000 defendants to determine what factors are reliable predictors of who will commit pretrial crime. This analysis suggests two important conclusions: First, judges often detain the wrong people. Judges often overhold older defendants, defendants with clean records, and defendants charged with fraud and public-order offenses. Second, using our model, judges would be able to release 25% more defendants while decreasing both violent crime and total pretrial crime rates.
Colleen V. Chien
90 Texas L. Rev. 283
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.
90 Texas L. Rev. 331
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.