The Magic Mailbox of Inga Markovits

Lawrence M Friedman

90 Texas L. Rev. 177

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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.

On the Value of Jurisprudence

Ian P. Farrell

90 Texas L. Rev. 187

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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.

Improving Forensic Science Through State Oversight

Ryan M Goldstein

90 Texas L. Rev. 225

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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.

The Multiplication of Indivisible Injury

Michael T. Raupp

90 Texas L. Rev. 259

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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.

Originalism and Sex Discrimination

Steven G. Calabresi & Julia T Rickert

90 Texas L. Rev. 1

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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.

Shifting Constitutional Designs in Latin America: A Two- Level Explanation

Gabriel L. Negretto

89 Texas L. Rev. 1777

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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.”

Models of Democracy and Models of Constitutionalism: The Case of Chile‘s Constitutional Court, 1970-2010

Javier Couso

89 Texas L. Rev. 1517

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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.

The Politics of Amendment Processes: Supreme Court Influence in the Design of Judicial Councils

Andrea Pozas-Loyo & Julio Rios-Figueroa

89 Texas L. Rev. 1807

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Ms. Andrea Pozas-Loyo and Professor Julio Ríos-Figueroa argue that the design of existing institutions and the political leverage of actors that do not participate directly in constitutional reform may exert an important influence on the design of institutions created by amendments.  In doing so, they challenge the assumption that constitution-making processes are and must be extraordinary and are unrelated to motivations and decisions that characterize ordinary politics.  The authors explain the pervasiveness of this assumption by pointing out that it is rooted in a focus on the creation of new constitutions and overlooks the process and politics behind amending existing constitutions.  Pozas-Loyo and Ríos-Figueroa contend that because of this, the design of institutions through amendments will be influenced by variables that do not regularly figure in the analysis of constitution-making, and as such, the more institutional power and political leverage actors have, the more likely such amendments will reflect their interests.

Pozas-Loyo and Ríos-Figueroa suggest two implications from their claim that ordinary politics often accompany constitutional amendment processes.  First, powerful judges can be expected to influence amendment processes aimed at reducing their adjudicatory powers.  Second, other powerful social and political actors with leverage over representatives can be expected to attempt to influence the outcomes of amendment processes that affect their interests.

Grafting Social Rights onto Hostile Constitutions

Roberto Gargarella

89 Texas L. Rev. 1537

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Professor Roberto Gargarella explains the tensions and implications of “unequal legal integration,” a scenario where new legal practices confront established legal infrastructure.  The most important example of this phenomenon in Latin America is the incorporation of social rights into hostile constitutions.

Historically, this merger occurred in Latin America during the early twentieth century by way of grafting social rights onto liberal-conservative political consensus.  Social rights were identified as objectives of the political branches, not the judicial.

The addition of new social rights changes organic constitutional structure by giving more power to the judicial branch, whether or not it is used.  Examples in Argentina and Colombia suggest that scholars pay insufficient attention to the internal implications of social reforms, even though they are perfectly foreseeable.  This fact is particularly pressing in light of the points of merger between models for different constitutions—conservative, liberal, radical or otherwise.  For instance, judicial constitutional review embraced by liberal and conservative constitutions may see less conflict when the parameters of the constitutional review are specifically defined to satisfy the preferences of both camps.  On the other hand, introduction of social rights into a liberal–conservative scheme that rejected those rights during the constitutional conventions of the nineteenth century may more seriously challenge the institutional framework subject to the imposition of the social rights.

As a result, the failure of reformers to anticipate and facilitate the inclusion of new social rights into constitutional infrastructures has resulted in some social rights falling into a “constitutional slumber.”  Not only does the institutional infrastructure sometimes resist actualization of the new social rights, those social rights are ineffectively or unpredictably reawakened in the future.  This flexibility is both a tool and a liability for the future pursuit of new social rights: it may mobilize groups around progress, but it may also be an exercise in futility.

The Inter-American Court and Constitutionalism in Latin America

Diego García-Sayán

89 Texas L. Rev. 1835

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Judge García-Sayán lauds the influence of the Inter-American Court on domestic Latin American judicial systems.  Domestic courts of Latin American countries serve not only as guarantors of the international obligations of states, they also legitimize and revitalize the rule of law by harmonizing international standards and their domestic law.  Four examples demonstrate this advance: amnesties, investigation of human rights violations, the right to an effective remedy, and rights of indigenous peoples.
With regard to amnesty, the Inter-American Court case of Barrios Altos has a significant impact on the ability of violators of international human rights laws to excuse their own behavior.  Of course, trial and conviction of Peruvian criminals throughout the Peruvian justice system was one result, but Barrios Altos also established interpretive parameters for analysis of amnesty provisions in Chile, Argentina, Colombia, and Uruguay.
With regard to investigation of human rights violations, the consistency of the Inter-American Court’s jurisprudence as to the importance of the obligation of states to guarantee international law has aligned the norms of a line of cases in Colombia and Peru.
With regard to the right to an effective remedy, the Inter-American Court’s interpretation of Article 8 and Article 25 of the American Convention has been adopted by the highest courts of several countries. For example, in Argentina, the Code of Criminal Procedure was amended as a result of the Inter-American Court’s decision in Herrera Ulloa v. Costa Rica to ensure the adequacy of Mr. Ulloa’s defense. In Guatemala, an Inter-American Court case overturned a death penalty sentence on a due process claim.  Additional decisions along these lines have come out of Peru and Mexico.
With regard to the rights of indigenous peoples, the Inter-American Court has established a framework for juridicial pluralism and nondiscrimination.  Against criticism of the imposition of international normative institutional parameters onto indigenous authorities, the Inter-American Court has protected the autonomy of indigenous groups while defending the principles of international human rights.  For instance, in Nicaragua, communal property rights of indigenous groups were vindicated by the Inter-American Court.  On the other hand, the Constitutional Court of Colombia has defended a strong interpretation of individual rights against the right of an indigenous community to punish offenders of their laws by using the approach of the Inter-American Court.