Mark L. Ascher
89 Texas L. Rev. 1149
As a result of intense lobbying, problematic legislative trends have developed over the last several decades in the law of the dead (as Professor Ascher refers to the law of wills and trusts). Here Professor Ascher reviews Dead Hands: A Social History of Wills, Trusts, and Inheritance Law by Lawrence M. Friedman, which explores the reach and longevity of the Dead Hand.
Ascher outlines and discusses four important changes in the law of the dead included in Friedman’s book. These involve changes in family structure, record keeping, demographics and culture, and societal attitudes toward wealth and the wealthy. One important change in family structure, for example, is a shift from focusing on the bloodline family to the family of affection and dependence. Another example is that the surviving spouse once only received limited inheritance, while today the surviving spouse is usually the primary if not exclusive taker. Although Friedman thinks this reflects a change in the family structure, Ascher argues that it is “attributable to and emblematic of the ever-increasing stature of women in American society.”
Ascher also examines the development of dynastic trusts and how such trusts concern societal attitudes toward wealth, in particular of the dynastic kind. Friedman thinks that in the beginning, Americans were initially skeptical of such wealth, but the end of the nineteenth century saw much more acceptance for it. Ascher, however, argues that the Progressive Movement was yet to come, which embodied a continued skepticism of dynastic wealth. Ascher then discusses other aspects of trusts and the changes thereto, some of which are troubling. But Friedman’s book, according to Ascher, lacks a sense of outrage over these developments, even though Friedman is critical of other issues, which is Ascher’s biggest criticism.
Ascher then looks at Friedman’s treatment of charitable gifts and foundations, and later, “death” taxes. He also returns to Friedman’s argument that our collective attitude toward wealth has changed, which Ascher does not believe to be the case. Ascher notes that we have strayed far from Thomas Jefferson’s warnings against establishing an aristocracy. Both the estate tax and the rule against perpetuities have been the primary means of preventing the accumulation and propagation of dynastic wealth. It is troubling then that both have recently been curtailed. Yet, Ascher concludes, it would not be difficult to get back on the right path, with a few sensible changes to the rules.
F. Gibbons Addison
89 Texas L. Rev. 1179
In this Note, the author addresses the U.S. system of wealth redistribution. According to Addison, the present wealth inequality between the rich and the poor is due to unequal opportunity, meaning an individual’s ability to pursue her objectives without interference from arbitrary obstacles.
Addison finds a solution to this problem in the revenue sharing system of professional sports leagues. Sports leagues employ such a system to increase the competitive balance of the league, which increases profits in the long run, even for high-revenue teams that contribute a portion of their revenues for distribution to low-revenue teams. Similarly, Addison argues that the U.S. should address wealth inequality by substituting the goals of equality and fairness for competition.
Addison begins with an overview of wealth redistribution in the U.S., starting in the colonial period with the influence of Adam Smith and continuing through the New Deal and the civil rights movement until arriving at the present system. Addison turns to an overview of revenue sharing in American professional sports, discussing the importance of cooperation in order to increase competition, ticket-sale sharing, and the potential problem of teams’ ability to exploit sources of local revenue.
Next, the author analyzes wealth redistribution in sports leagues. Addison notes some possible imperfections to the systems but argues that the leagues need low-revenue teams to be successful. The goal of revenue sharing, writes Addison, is not perfect competition but competitive balance.
Gregory R. Baden
89 Texas L. Rev. 1203
This Note proposes a third-party obviousness specialist in patent litigation in response to the challenge of practically determining this requirement in a technically and legally consistent manner.
Making consistent determinations of obviousness is a challenge at all levels of the patent system, from patent examiners to the U.S. Supreme Court. An erroneous determination can be costly, due to the cost of the disputes. The root of the challenge of determining obviousness is its doctrinal positioning as a mixed question of fact and law, according to Baden. One problem with this positioning is whether a judge, jury, or some combination of the two should be responsible for making the determination.
In response to the challenges of the obviousness determination, Baden proposes a third-party obviousness specialist, and situates the role of this specialist within the concepts of patent law. Rather than supplanting the judge or jury, the “obviousness master” would assist the court in establishing the boundaries of the obviousness factual inquiries. Baden notes that there is support for such a master in both academic commentary and existing legal doctrine, which he discusses.
He then addresses the options for practical implementation of the obviousness master. He provides two possible forms. First, the obviousness master could be implemented in a manner similar to that employed for a traditionally titled special master in claim construction or interpretation hearings. Second, the role could be developed via a specialized incarnation of an expert witness, which would include the use of a double-blind selection method for choosing the individual. Baden addresses each form in detail.
Lastly, Baden presents the benefits and challenges of, and arguments for and against, implementing an obviousness specialist. Baden concludes that an obviousness specialist would allow the parties, the court, and, importantly, the jury to focus on the primary task of navigating the defined waters of the invention without venturing into the unmapped sea of innovation.
Joshua H. Packman
89 Texas L. Rev. 1229
In this note, Packman discusses the pending Parliamentary Voting Systems and Constituencies Bill (PVS Bill), which is aimed at British electoral reform in response to the 2010 hung parliamentary election. The PVS Bill provides for a referendum on switching from the first-past-the-post electoral system to the alternative vote and would also reduce the size of Parliament to 600 members.
Packman first examines the effect of the PVS Bill on the British Constitution by virtue of the referendum. One important part of the British Constitution, according to Packman, is the doctrine of the sovereignty of Parliament. Packman discusses different aspects of this doctrine, and notes that he is taking a simplistic view for the purposes of the Note that Parliament is the supreme legislative authority and its sovereignty is the core principle of the British Constitution.
Packman then introduces Bruce Ackerman’s thoughts on an alternative source of constitutional legitimacy: the referendum. This would potentially vitiate parliamentary sovereignty, but Packman argues that this outcome is not preordained. Packman finds that the PVS Bill as a referendum only partly diminishes the sovereignty of Parliament.
Packman then analyzes the constitutional effects of switching the electoral system to the alternative vote, which he argues represents a major reform of the British Constitution and a threat to parliamentary sovereignty. He first provides an overview of the system and theory of government that exists under the current British Constitution. He then looks at how the PVS Bill would change this system. As such, Packman writes that the PVS Bill, by substantially reducing the number of seats won by the majority party, would effectively transform Parliament from a government of “front benchers” into a government of “backbenchers” by increasing the relative power of each member of the majority party vis-à-vis the Prime Minister and the Cabinet.
This is not the first time that Parliament has attempted to change the voting system, concludes Packman. And if it fails, it will surely not be the last. Such alterations reflect underlying changes in the values embodied in the British Constitution, and the alternative votes represent a change from government based on parliamentary sovereignty to government based on popular sovereignty.
Michael J. Ritter
89 Texas L. Rev. 999
In this Note, Ritter examines legal protections for queer elders residing in nursing homes, specifically under the Nursing Home Reform Act (NHRA). As the U.S. population steadily ages, so does the portion of queer elders increase—what Ritter refers to as “the hidden population.” What’s more, this segment of the elder population often lacks immediate family members that they can live with when unable to live alone and, unlike opposite-sex couples, same-sex partners are often ineligible for tax and other benefits. As a result, a relatively greater number of queer elders will be more likely to move into nursing homes.
Ritter first provides an overview of the problems elderly individuals face when transitioning from independent living to a nursing home. He highlights the distinctive problems queer elders face in this transition, specifically discrimination in the form of abuse, neglect, and stigmatization. These problems, Ritter notes, along with a perceived need to conceal their sexual orientation, contributes to the deterioration of their health.
Ritter next reviews pertinent provisions of the NHRA. This legislation regulates nursing homes that receive federal funds by establishing a residents’ bill of rights and requiring nursing home to maximize the welfare of each patient. Ritter argues the NHRA should be reformed to add a statutory right of nondiscrimination based on sexual orientation and gender identity, to require nursing aides to undergo sensitivity training, and to diminish the discretion of the Secretary to decide whether to issue penalties to nursing homes that violate the NHRA’s proscriptions. Doing so would not only improve the relationships between queer elders and their nursing aides, but also improve the quality of care these residents receive.
David A. Snyder
89 Texas L. Rev. 1019
According to democratic theory, copyright should be used to bring society, individuals, or both closer to some ideal. Democratic theorists thus value the active making of works of expression by individuals, that is, participation, because they believe it can help to achieve this ideal.
In this Note, Snyder explores two problems with the value of participation. First, the content of the value of participation is vague, with room for greater specification. Second, the value of participation seemingly violates the neutrality thesis by mandating government action on the basis of a conception of the good. Neutralists, by contrast, argue that coercive government action designed to promote a view of the good is inappropriate.
Snyder argues that understanding the relationship between the value of autonomy and that of participation helps to give further specification of the latter. Moreover, Snyder argues that this modified concept of participation does not violate the neutrality thesis. On the one hand, it does not qualify as a concept of the good. On the other, its implementation does not involve coercion.
89 Texas L. Rev. 755
In this Article, Driver challenges the rising view within constitutional law known as “consensus constitutionalism.” This view holds that the Supreme Court interprets the Constitution in a way that reflects the “consensus” beliefs of the American public. Driver challenges this view by identifying and critiquing its defining features.
Driver notes that this consensus movement has a similar precedent among history professors during the 1940s and 1950s. These professors, reacting to a perceived overemphasis on conflict in examinations of the past, argued that the historical focus should instead by on American commonality. This movement did not last, as it was discredited by the 1960s for its homogenous conception of the past. Driver finds it curious, then, that consensus constitutionalists, who also rely on history in their scholarship, do not appear to have incorporated the debate among history professors into their work, especially considering the important lessons and conclusions that can be drawn from it.
After reviewing this debate, Driver turns to three analytical shortcomings of consensus constitutionalism. It views the American people as united when in fact ideological divisions pervade society. Also, its notion that the Court’s decisions reflect some societal consensus leads to the misguided impression that judicial decisions are inevitable, so the composition of the Court is irrelevant. Lastly, it contains distressing normative implications regarding the Court’s ability to clash with majority preferences, assuming the justices accept its warning about the perils of the Court outpacing public opinion.
As an alternative external methodology, Driver proposes “contested constitutionalism.” According to this approach, the Court’s constitutional interpretation typically arises in the face of ideological conflict, not consensus. Driver then illustrates in detail how this alternative approach plays out in practice by providing a revised account of Brown v. Board of Education and the Court’s role in recognizing black Americans as full citizens during this period.
In conclusion, Driver urges legal scholars to move away from consensus constitutionalism and its focus on simplicity, and instead embrace contested constitutionalism in order to provide a richer historical account of many significant events in legal history. Moreover, how law professors explain the Court’s history and its ability to protect minority rights, writes Driver, ultimately exert some influence on how judges perform their jobs. Thus, contested constitutionalism seeks to preserve the Court’s countermajoritarian capabilities.
Aziz Z. Huq
89 Texas L. Rev. 833
In this Article, Huq analyzes the legal and policy significance of state reliance on religious speech as a predictor of terrorism risk. In attempting to preempt terrorist conspiracies, law enforcement agencies in the United States and Europe are faced with the problem of acting without information that typically indicates criminal violence. They lack reliable signals of alleged terrorist intent. Law enforcement agencies have come to consider religious speech a proxy for such intent. Yet, asks Huq, is such reliance constitutional? The Religion Clauses seem to restrain this. Huq wonders if such reliance is wise.
From a constitutional perspective, this use of religious speech as proxy for terrorist intent indirectly casts a shadow on religious liberties. Using a religious phrase or doctrine as evidence of terrorist intent, argues Huq, creates an incentive for others who follow that religion not to use that phrase or doctrine.
From a counterterrorism perspective, religious speech also appears to be a poor proxy for terrorist intent. First, government is ill-equipped, according to Huq, to make judgments about the meaning of religious speech. Second, empirical and social science studies suggest that the close associations of a suspect would be a superior signal, as variance in religious speech has been shown not to correlate with the risk of terrorist violence. The emergence of terrorism tends to be associated with the presence of insular groups that have separated from the cultural or subcultural mainstream. Identifying these groups, rather than searching for particular kinds of religious speech, may provide better guidance as to the likely incidence of terrorist violence.
In conclusion, Huq argues that because of emerging evidence that association rather than religious speech better correlates to terrorist intent, government should change its focus from religious speech, thus alleviating the constitutional concerns that the current approach indirectly fosters.
Thomas C. Berg
89 Texas L. Rev. 901
In this review, Berg discusses the first volume, Overviews & History, of Douglas Laycock’s collected writings on religious liberty. According to Berg, Laycock’s greatest contribution to this theory has been to explain how religious liberty can coincide with government neutrality and evenhandedness toward religion. Laycock did so by distinguishing “formal neutrality,” meaning a ban on religious classifications or on categories referring to religion, from “substantive neutrality,” meaning that government must minimize the extent to which it either encourages or discourages religious belief or disbelief. Berg notes that this conception harmonized neutrality with religious liberty, and that Laycock’s great contribution is to reconcile these two distinct explanations of the Religion Clauses.
Berg raises two doubts about Laycock’s position. The first concerns whether religious or theological arguments may serve as significant public reasons for America’s system of religious liberty. The second involves whether the Establishment Clause permits government any power to include religious content in its statements.
After discussing these doubts, Berg concludes that Laycock’s principles show a remarkable analytical power as well as great sympathy for the claims of people of widely varying views. He places Laycock among the great thinkers on religious liberty in US history and looks forward to the coming volumes.
Steven D. Smith
89 Texas L. Rev. 917
In this book review, Smith attempts to distill the overall purpose of the first volume of Douglas Laycock’s collected works, reflects on its contributions to our understanding of the law, and notes what, in his view, are its primary limitations.
As for the distillation, Smith finds that Laycock’s work centers on a seemingly simple yet powerful proposition: the Religion Clauses are about religious liberty, and a commitment to religious liberty requires minimizing governmental influence over individual choices of religious belief and practice. In Laycock’s terms, this is “substantive neutrality.”
Next, Smith turns to the context in which Laycock is working. Two troublesome aspects to which he draws attention are the disarray of both the doctrine and case law of religious freedom as well as the divisions among the larger society of judges and scholars addressing such questions. Even more problematic, Smith argues, is that religious freedom has contributed to an increasingly diverse population in which the classical religious premises and rationales are unlikely to enjoy universal acceptance. As a result, religious freedom subverts its own supporting rationales and threatens to cancel itself out. Laycock’s goal, according to Smith, has been to devise a plausible account of the religion provisions of the Constitution that can be used to resolve contemporary controversies.
Smith raises two criticisms, one secular and one devout. The first questions why religious belief and conduct should be singled out for special constitutional protection. Smith explores some of the implications of Laycock’s reasoning and whether it actually answers the question why religious liberty.
Then, Smith examines Laycock’s insistence that all religious expressions by government are constitutionally forbidden, despite such historical practices as appointing a legislative chaplain or declaring a national day of prayer. As part of this examination, Smith analyzes the different facets of Laycock’s claim that the Establishment Clause contains a principle forbidding religious expression by government, ultimately concluding that the logic is somewhat frail.
Finally, Smith turns to Laycock’s “Puritan Mistake.” According to Laycock, religion is essentially private choices about what to believe with respect to a set of ultimate questions about God and the cosmos. So, those who think government should express support for some religious view are demanding that government put its imprimatur on their own essentially private beliefs. Yet, argues Smith, for many people this position neglects important aspects of faith, such as its communal and even public nature. So, Laycock commits a version of the error that he attributes to the Puritans and others—people interpret the First Amendment according to how they view religion. Smith finds Laycock guilty of the same.