Constructing a Canon of Law-Related Poetry

Alexandra J. Roberts
90 Texas L. Rev. 1507

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Law and poetry make a potent, if surprising, pair.  Poetry thrives on simultaneity and open-endedness, while legal writing aspires to resolve issues decisively, whether it advocates or adjudges.  The law and literature movement has traditionally focused either on law as literature, applying literary theory and techniques to legal texts such as judicial opinions and legislation, or law in literature, i.e., law as portrayed in literary and artistic works.  Poetry and poetics have garnered relatively little attention under either approach.  While some scholars blame that omission on a supposed dearth of law-related poetry, the poems collected in Kader and Stanford’s Poetry of the Law: From Chaucer to the Present belie that claim.  This essay considers the place of poetry in legal studies and advocates incorporating it into both the dialogue and the curriculum of the law and literature movement.  It identifies themes that emerge from the juxtaposition of the poems in the anthology, examines the relationship of fixed-verse forms to law in the poems, and draws attention to those voices that are underrepresented in the collection and the movement.  It relies primarily on the process of close reading several of the hundred poems included in POETRY OF THE LAW and, in so doing, it practices law in literature while it models precisely the type of critical approach that would serve those participating in the study of law as literature.  It prescribes a canon of law-related poetry and illustrates how the inclusion of poems and techniques of poetic interpretation stand to benefit students, lawyers, and theorists alike.

Monetary Damages and the (b)(2) Class Action: A Closer Look at Wal-Mart v. Dukes

Neil K. Gehlawat
90 Texas L. Rev. 1535

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In his note, Monetary Damages and the (b)(2) Class Action: A Closer Look at Wal-Mart v. Dukes, Neil K. Gehlawat explores the Supreme Court’s ruling in Wal-Mart v. Dukes as to the circumstances, if any, under which a plaintiff class could recover monetary damages in a Rule 23(b)(2) class action. He argues that scholarship focusing on competing interpretations of the “predominance” language in the Advisory Committee’s Note to Rule 23(b)(2) is misconceived because it overlooks the normative policies that underlie Rule 23(b)(2).  Gehlawat begins by examining the procedural requirements of Rule 23 and then briefly reviews the Supreme Court’s recent decision as well as existing case law and scholarship on the issue of monetary damages in (b)(2) class actions.  He then identifies the competing policies at stake in (b)(2) class actions—the right to individual participation and the need for remedial efficacy—and contrasts them with the competing policies that underlie (b)(3) class actions.  He concludes by considering whether particular damage remedies are appropriate in (b)(2) class actions in light of these competing policies.

Would You Want William Hung as Your Trier of Fact? The Case for a Specialized Musicology Tribunal

Eric M. Leventhal
90 Texas L. Rev. 1557

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Eric M. Leventhal’s note, Would You Want William Hung as Your Trier of Facts? The Case for a Specialized Musicology Tribunal, suggests a complete reform of the present judicial treatment of musical copyright infringement cases by advocating the formation of academically constituted music tribunals.  After reviewing the history of musical copyright infringement cases, he addresses why musical copyrights are worthy of special analysis, separate and distinct from other enumerated works.  He then delves into the academic, logistical, and procedural failures of the present legal treatment of musical copyrights before outlining a solution and the rationales for its immediate implementation.

From the Streets to the Courts: Doing Grassroots Legal History of the Civil Rights Era

Ariela J. Gross
90 Texas L. Rev. 1233

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Professor Ariela J. Gross reviews Tomiko Brown-Nagin’s Courage to Dissent: Atlanta and the Long History of the Civil Rights Movement.  Gross views Brown-Nagin’s work as a valuable alternative view to the one-sidedness of most legal histories of the civil rights movement, most of which have focused disproportionately on Brown v. Board of Education.  Gross praises Brown-Nagin for illuminating the once-taboo conflicts within the black activist community during the civil rights era.  In addition, Gross addresses Brown-Nagin’s coverage of the grassroots movement to oppose civil rights, and suggests that these two stories must go hand in hand to truly understand the civil rights era and rewrite the standard narrative of Brown and its aftermath.

Picking on the Little Guy? Asserting Trademark Rights Against Fans, Emulators, and Enthusiasts

David E. Armendariz
90 Texas L. Rev. 1259

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Mr. David E. Armendariz addresses the phenomenon of trademark owners asserting their trademark rights against what he calls fans, emulators, and enthusiasts—groups that use the mark not to create a separate brand identity of their own but rather to show their support for or imitate the original brand owner.  Armendariz argues that, while trademark owners have good reasons for asserting these rights, such enforcement actions yield no benefit and may in some cases cause harm.  Armendariz’s solution to this phenomenon is a change in the incentives for trademark owners, in which owners would at least not be encouraged to pursue enforcement actions that benefit no one and may in fact be damaging.  Armendariz proposes two methods of achieving this change in incentives: (1) ensuring that the doctrines of acquiescence and laches do not attach unless there is a risk of significant harm to the original owner’s interests, and (2) assessing the factors of confusion and dilution differently in enforcement actions against fans, emulators, and enthusiasts.

Qualified Immunity in the Fifth Circuit: Identifying the “Obvious” Hole in Clearly Established Law

Amelia A. Friedman

90 Texas L. Rev. 1283

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Ms. Amelia Friedman dissects the clearly-established-law requirement in the qualified immunity doctrine in Section 1983 cases.  Friedman introduces the idea of the obvious case—in which precedents demonstrate a rule clear enough to put an officer on notice, even in the absence of directly similar facts—and argues that courts should incorporate it into the doctrine of qualified immunity in order to more fairly balance the interests of plaintiffs and public-official defendants in Section 1983 cases.  While Friedman notes that a workable standard for the obvious case has yet to be developed, she contends that, in light of the Fifth Circuit approach, the failure to account for obvious cases unfairly shields officials from liability when they have clearly violated constitutional rights.

Using Financial Incentives to Achieve the Normative Goals of the FMLA

Kristin M. Malone

90 Texas L. Rev. 1307

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Ms. Kristin Malone asserts that the goal of the Family Medical Leave Act, producing a workforce that does not discriminate against women on the basis of presumed obligations to private-sphere responsibilities, has not been achieved in the two decades since it was passed.  Malone argues that the FMLA’s gender-neutrality, while created in an attempt to manufacture equality, entrenches gender differences by recreating and validating social and market incentives for women to shoulder the burden of family responsibilities.  Malone analyzes the legislative history and practical effects of the FMLA and concludes that financial incentives are necessary to reach the objectives of the FMLA when it was passed.  She proposes structural reform coupled with tax incentives for employers in order to vindicate the normative aims of the act.

Talk Derby to Me: Intellectual Property Norms Governing Roller Derby Pseudonyms

David Fagundes
90 Texas L. Rev. 1093

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Professor David Fagundes conducts an empirical study on how intellectual property is protected via social norms, rather than formal law, in the world of roller derby.  Fagundes delves into rule structure, registration system, and governance regimes that roller derby skaters have organically developed to protect the pseudonyms that they use in the rink.  Based on his findings, Fagundes asserts that IP norms emerge independently of the substantive law when the relevant group is close-knit and the norms are welfare enhancing.  He also suggests an alternative way of thinking about the problem of supplying property systems, casts doubt on the coherence of the prevailing neoclassical economic assumptions underlying IP law, and reflects on what it means for rules to be law.

The Myth of the Customary Law Merchant

Emily Kadens
90 Texas L. Rev. 1153

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Professor Emily Kadens counters the argument that the customary law merchant, uniformly and universally adopted across Europe, facilitated international trade.  Professor Kadens attacks two fundamental principles of this law merchant myth: that uniform and universal customary merchant law could have existed and that merchants needed it to exist.  Instead, Professor Kadens argues that merchants largely applied their own customs in medieval commercial transactions but that this usage did not hamper international trade because intermediaries such as brokers ensured that medieval merchants had no need for a transnational law.  Ultimately, Professor Kadens uses this argument to refute the assumption of many international commercial arbitrators and of Article Two of the Uniform Commercial Code that decision makers should look to merchant usage to decide disputes.

The Supreme Court‘s New Battlefield

Josh Blackman
90 Texas L. Rev. 1207

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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.