90 Texas L. Rev. 1207
Adam Winkler’s new book, Gunfight, tells the story of the battle over the right to bear arms in America. The flow of Gunfight, which reads more like a page-turning novel than an academic work, can best be described as a finely designed tapestry—several intricately woven threads cross and intersect throughout the chapters to form a rich, full discourse of the story of gun rights and gun control in America. The first thread tells the captivating story of District of Columbia v. Heller. The second thread introduces the genesis of the modern-day gun control movement, pejoratively labeled by Winkler as the “gun grabbers,” who aspire for complete civilian disarmament.
The third thread explores the evolution of the so-called “gun nuts,” who instinctively oppose any limitation on the right to keep and bear arms, no matter how reasonable or sensible. The extreme gun grabbers and gun nuts have declared the Second Amendment as the Supreme Court’s new battlefield: a sharp culture war divided along firmly entrenched ideological fronts, with no choice of a middle ground. But as Winkler’s balanced, important, and timely work shows, this has not always been the case in America.
The fourth thread—and really the vein that circulates Winkler’s thesis throughout the work—is the relationship between gun rights and gun control in the American tradition. This balance has ebbed and flowed along with numerous social movements in our nation’s history: from Revolution, to Reconstruction, to the Frontier, to Prohibition, to the Civil Rights Era, to the present.
Though a fifth thread that threatens to unravel the entire tapestry is loose—what is the relevance of this history to the development of modern Second Amendment jurisprudence?—the Supreme Court, and not Winkler, is to blame for this shortfall. Heller has set forth an uneasy temporal relationship between the original understanding of the Second Amendment—that is, how the right would have been understood at the time of its ratification in 1791—and the role that the two centuries of cultural and legal development that Winkler chronicles should play in the constitutionality of gun control laws.
Since Heller and McDonald v. City of Chicago, the lower courts have grappled with this question. Winkler does not fully connect this history with the future, short of making the lamentable, though largely anachronistic, argument that “as the history of the right to bear arms and gun control shows, there is a middle ground in which gun rights and laws providing for public safety from gun violence can coexist.”
Winkler’s magisterial work is by far the fairest and most well-balanced book about gun control in America. Winkler, better than any scholar today, can peel back the veneer of the heated rhetoric and drill to the core of what this issue is about—keeping society safe and minimizing harm from guns, while at the same time protecting the right of people to defend themselves. With its appeal to both academic and popular audiences, Gunfight brings some much-needed clarity to the fog of the Supreme Court’s new battlefield.
Deborah N. Pearlstein
90 Texas L. Rev. 797
The question of how to distinguish expert advice from undemocratic influence that has long surrounded the work of administrative agencies is made especially complex by the unique constitutional role of the military. Before one can tell whether civilian control is threatened, one must first have some understanding of what it is. Yet for all the intense focus in recent years on the legality of what the military does, where the modern military fits in our constitutional democracy has remained remarkably undertheorized in legal scholarship. Moreover, prevailing theories of civilian control in the more developed social- and political-theory literature of civil–military affairs view the Constitution’s separation of powers—in particular, the allocation of authority over the military to more than one branch of government—as a fundamental impediment to the maintenance of civilian control as they take it to be defined. As a result, there remains a significant gap in the development of a constitutional understanding of the meaning of civilian control. This Article is Professor Pearlstein’s effort to begin filling that gap, by examining whether and how the constraining advice of military professionals may be consistent with our modern separation of powers scheme.
Deborah A. Widiss
90 Texas L. Rev. 859
In this article, Professor Widiss examines congressional overrides and a problem she calls the “hydra problem.” First, she explores the challenge that overrides pose to the standard rule of precedent and defines the hydra problem. She then discusses in detail the multistep conversation between the courts and Congress regarding the standard of causation in employment discrimination statutes and imagines an alternative version of the story to illustrate how the interpretative conventions courts use to interpret overrides improperly minimize the significance of Congressional interventions relative to judicial interpretations. She also uses the rapid application of Gross v. FBL Financial Services, Inc. in other contexts and bills Congress has considered to override Gross to argue that the putative response that the Court indicates it expects from Congress is unreasonably difficult for Congress to achieve and could cause significant new problems. Finally, Professor Widiss argues that courts should instead adopt interpretive rules that more fairly respect the institutional realities of Congress because this would better permit overrides to play their expected role as a means for Congress to signal disagreement with judicial interpretations of statutes and promote the orderly and consistent development of statutory law.
90 Texas L. Rev. 943
In his Review of The Executive Unbound: After the Madisonian Republic, Professor Benjamin Kleinerman agrees with Professors Eric Posner and Adrian Vermeule to the extent they point to a problem in our constitutional order: The executive is increasingly “unbound” insofar as Congress has continuously passed enabling legislation which promotes the executive’s complete freedom. Kleinerman also agrees with their critique of legal liberalism’s hope to reestablish Congress’s supposed constitutional preeminence. But Kleinerman disagrees with Posner and Vermeule when they implicitly cede to legal liberalism the claim that, constitutionally, Congress should be preeminent. Kleinerman argues that liberal legalism’s characterization of the necessary preeminence of Congress over the President is a mischaracterization of our constitutional order. Kleinerman concludes that the constitutional order depends upon three institutions actively engaged in political conflict over the scope of their powers, and Congress currently passes off its power to both the presidency and the courts. Given that the constitutional order insulates those two institutions on the assumption that Congress will be too aggressive, perhaps we should rethink the constitutional order itself, Kleinerman argues.
Saikrishna B. Prakash & Michael D. Ramsey
90 Texas L. Rev. 973
In this Review, Professors Saikrishna B. Prakash & Michael D. Ramsey critique The Executive Unbound: After the Madisonian Republic’s central claim that we live in a post-Madisonian republic. They argue that Professors Eric Posner and Adrian Vermeule have shown that the modern executive is much less bound by law than in the past, but they have not shown that the Executive is unbound by law, or that the Executive should be. Prakash and Ramsey also consider The Executive Unbound as a normative argument for adopting a legally unbound executive, and it finds the case not proven. Finally, the reviewers tentatively conclude that separation of powers and related constraints play an important role in creating a “Goldilocks Executive”: an executive neither much too strong nor much too weak, but about right.
Stephen A. Fraser
90 Texas L. Rev. 1009
In light of the lack of clarity and the high stakes of current enforcement of the Foreign Corrupt Practices Act, former enforcers and other FCPA practitioners are debating revisions to the Department of Justice’s enforcement policies. In response to the debate, Stephen A. Fraser argues that an FCPA amnesty program would most successfully secure the economic and noneconomic interests of the DOJ and cooperating companies. He first examines key features of the Antitrust Amnesty Program, which serves as a model for this FCPA amnesty proposal. Fraser then describes the current policy of the DOJ toward companies that cooperate in FCPA investigations, identifying the unofficial, although frequent, practice of seeking a reduced sentence based on a company’s level of cooperation. Finally, Fraser argues that a program with complete amnesty for companies and individuals that self-report FCPA violations best serves the monetary and nonmonetary interests of the DOJ and cooperating companies, whereas competing proposals do not.
David J. Kohtz
90 Texas L. Rev. 1041
Historic preservation laws are increasingly controversial, and their perceived unfairness has led to calls for their repeal. In his note, David Kohtz argues that policymakers should condition tax incentives on some form of public access to efficiently produce the public benefits that justify the incentives. He first examines the justifications for historic preservation tax incentives, concluding that public access is essential to effective incentive programs. Next, he critically reviews public access provisions in selected statutes, focusing on access to private residences. The programs provided by these statutes, he explains, fall into three categories: (1) physical access, (2) visual access, and (3) virtual access. Kohtz concludes that it is only by providing at least one of these types of access that historic preservation tax incentives are justified.
Gabriel H. Markoff
90 Texas L. Rev. 1065
In this Note, Mr. Gabriel Markoff argues that the doctrine of issue exhaustion may pose an unjustifiable barrier to diverse interest group participation in the administrative rulemaking process. He first discusses the need for pluralistic participation in rulemakings and postulates that issue exhaustion exacerbates the well-known dominance of rulemaking participation by regulated parties. After tracing the history of issue exhaustion, he presents an original survey of D.C. Circuit case law showing that issue exhaustion likely remains a highly effective barrier to judicial review by parties that do not submit comments in rulemaking comment periods. Next, Mr. Markoff argues that issue exhaustion renders toothless the concerns of public interest groups, small businesses, and other poorly financed groups that do not have the financial means to submit detailed, technical comments in rulemakings. This, he argues, is because agencies only listen to those parties who can use their ability to seek judicial review as leverage to negotiate favorable rule content and interpretations. Mr. Markoff concludes by proposing that issue exhaustion be modified from a bright-line bar against review to a presumption in favor of allowing judicial review, one which could be rebutted by a showing of adequate participation or bad faith on the part of the party seeking review.
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.