Setting Examples, Not Settling

Ross MacDonald

91 Texas L. Rev. 419

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In this Note, Mr. MacDonald argues that the Securities and Exchange Commission must structurally rethink the way it enforces securities laws because the current system is radically inadequate.   Part II discusses the history of this system.  Part III details the incentives behind the settlement regime, and Part IV documents its rabid and uncompromising failures on both a theoretical and empirical level.  Part V suggests two solutions bringing more cases to trial and imposing individual, rather than corporate, liability as methods for bringing securities laws enforcement back to deterrence equilibrium, where the harm of violating the laws actually compares to the expected costs of those violations.   Ross MacDonald argues that only at such an equilibrium can the public reasonably expect to see the number of financial frauds decrease to an acceptable level.

Blowing the Whistle on Civil Rights

Ralph C. Mayrell

91 Texas L. Rev. 449

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In this Note, Mr. Mayrell sets out to explain the legal theory through which civil rights litigators can effectively litigate claims against local government discriminators using the False Claims Act (FCA).   Part I briefly outlines the scheme of antidiscrimination laws and regulations that are potentially enforceable under the FCA and their limitations.   Part II lays out the legal theory of how an antidiscrimination action could form the basis of an FCA claim and provides recent examples of courts favorably reacting to plaintiffs’ use of the FCA in civil rights suits.   Part III briefly proposes that agencies use their contracting flexibility to add relevant constitutional requirements.   Part IV discusses the potential legal and policy hazards of using the FCA to increase the liability of local governments for civil rights violations.


Justice John Paul Stevens

91 Texas L. Rev. 1

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The Supreme Court’s Contemporary Silver Platter Doctrine

David Gray, Meagan Cooper & David McAloon

91 Texas L. Rev. 7

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In a line of cases beginning with United States v. Calandra, the Court has created a series of exceptions to the Fourth Amendment exclusionary rule that permit illegally seized evidence to be admitted in litigation forums collateral to criminal trials.  This “collateral use” exception allows the government to profit from Fourth Amendment violations in grand jury investigations, civil tax suits, habeas proceedings, immigration removal procedures, and parole revocation hearings.  In this essay we argue that these collateral use exceptions raise serious conceptual and practical concerns.  The core of our critique is that the collateral use exception reconstitutes a version of the “silver platter doctrine.”  In the days before the Fourth Amendment and the exclusionary rule were incorporated to the states, the silver platter doctrine allowed federal courts to admit evidence seized by state law enforcement agents during “unreasonable” searches and seizures.  The silver platter doctrine was rejected by the Court in 1960 out of concern that it was compromising states’ efforts to guarantee constitutional protections because it created incentives for state law enforcement officers to violate the Fourth Amendment.  By recreating the silver platter doctrine, the Court’s collateral use cases have recreated some of those incentives.  Our research indicates that these incentives have been successful in altering police practices in ways that threaten the Fourth Amendment rights of all citizens.

Speaking Truth to Firepower: How the First Amendment Destabilizes the Second

Gregory P. Magarian

91 Texas L. Rev. 49

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When the Supreme Court in District of Columbia v. Heller declared that the Second Amendment protects an individual right to keep and bear arms, it set atop the federal judicial agenda the critical task of elaborating the right’s scope, limits, and content.  Following Heller, commentators routinely draw upon the First Amendment’s protections for expressive freedom to support their proposals for Second Amendment doctrine.  In this Article, Professor Magarian advocates a very different role for the First Amendment in explicating the Second, and he contends that our best understanding of First Amendment theory and doctrine severely diminishes the Second Amendment’s legal potency.  Professor Magarian first criticizes efforts to draw direct analogies between the First and Second Amendments, because the two amendments and their objects of protection diverge along critical descriptive, normative, and functional lines.  He then contends that longstanding debates about whether constitutional speech protections primarily serve collectivist or individualist purposes present a useful model for interpreting the Second Amendment.  The language of the Second Amendment’s preamble, which Heller all but erased from the text, compels a collectivist reading of the Second Amendment.  The individual right to keep and bear arms, contrary to the Heller Court’s fixation on individual self-defense, must serve some collective interest.  Many gun rights advocates have long urged that the Second Amendment serves a collective interest in deterring—and, if necessary, violently deposing—a tyrannical federal government.  That theory of Second Amendment insurrectionism marks another point of contact with the First Amendment, because constitutional expressive freedom serves the conceptually similar function of protecting public debate in order to enable dynamic political change.  Professor Magarian contends, however, that we should prefer debate to violence as a means of political change and that, in fact, the historical disparity in our legal culture’s attention to the First and Second Amendments reflects a long-settled choice of debate over insurrection.  Moreover, embracing Second Amendment insurrectionism would endanger our commitment to protecting dissident political speech under the First Amendment.  The Article concludes that our insights about the First Amendment leave little space for the Second Amendment to develop as a meaningful constraint on government action.

How Do We Redeem the Time?

Stephen M. Griffin

91 Texas L. Rev. 101

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Professor Griffin reviews Jack M. Balkin’s most recent books, Living Originalism and Constitutional Redemption: Political Faith in an Unjust World.

Reconstruction and Resistance

Kermit Roosevelt

91 Texas L. Rev. 121

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Professor Roosevelt reviews Jack M. Balkin’s most recent books, Living Originalism and Constitutional Redemption: Political Faith in an Unjust World.

Constitutional Redemption

Lawrence B. Solum

91 Texas L. Rev. 147

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Professor Solum reviews Jack M. Balkin’s most recent books, Living Originalism and Constitutional Redemption: Political Faith in an Unjust World.

Resolving the Circuit Split on Defense Witness Immunity: How the Prosecutorial Misconduct Test Has Failed Defendants and What the Supreme Court Should Do About It

Nathaniel Lipanovich

91 Texas L. Rev. 175

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In this Note, Nathaniel Lipanovich discusses the near impossibility of obtaining immunity for defense witnesses in federal criminal cases, and explores the need to expand defendants’ rights to obtain immunity for their witnesses.  He provides a statistical overview of the current state of defense witness immunity and identifies a split among the circuits.   Lipanovich offers an empirical overview of all the cases on the topic, details the approaches employed by the circuit courts, and suggests that the prosecutorial misconduct standard used in ten of the twelve circuits fails to provide adequate protection for the accused.  He then analyzes arguments on both sides of the matter before concluding that the Supreme Court, yet to rule on the issue, should expand a defendant’s right to obtain immunity for essential witnesses by adopting the Ninth Circuit’s Straub test for defense witness immunity.

Luddites No Longer: Adopting the Technology Tutorial at the Supreme Court

Karson Thompson

91 Texas L. Rev. 199

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In this Note, Karson Thompson argues that the Supreme Court is ill-equipped to meet the challenges presented by rapidly changing technologies.  Thompson chronicles some of the Court’s recent technological troubles, and explains how the current system fails to bridge the Court’s technological gap.  He illuminates how the Court’s often Luddite existence damages the law as well as the Court itself.  Thompson’s proposed solution: the Supreme Court should implement a form of the “technology tutorial,” a highly malleable process used in patent litigation to educate generalist judges about complex technologies.  He argues that through the use of technology tutorials, the Justices could enhance their understanding of the technologies underlying many difficult cases, resulting in more accurate, defensible, and responsible decisions while simultaneously boosting the Court’s legitimacy.