The Essential Role of Courts for Supporting Innovation

Erin O’Hara O’Connor & Christopher R. Drahozal

92 Texas L. Rev. 2177

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Recent studies tend to show that parties to innovative contracts and those operating in innovative environments rely more heavily on lawyers and contract documents than parties in other non-innovative environments. Despite this reliance, many of these parties still express a strong commitment against resolving disputes through the use of the court system. However, a significant number of contracting parties continue to demand that their right to resolve particular claims through the court system be preserved in their innovative contracts. In this article, Professors O’Connor and Drahozal explore party use of contract terms to express a preference for courts for the enforcement of rights surrounding innovation. They then explain the advantages of using courts over arbitration in protecting innovation. They describe the empirical findings that prove private parties demand courts for the protection of their innovation. The article concludes by exploring the implications of these findings for the applicable rules applied by courts.

Copyright Registrations: Who, What, When, Where, and Why

Dotan Oliar, Nathaniel Pattison & K. Ross Powell

92 Texas L. Rev. 2211

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The registration records at the U.S. Copyright Office provide a valuable lens on the use and performance of the copyright system, but have not yet been studied systematically. Using an original data set containing all 2.3 million registrations from 2008 to 2012, Professors Oliar, Pattison, and Powell provide a snapshot of current patterns of registration. In this article, they describe who is registering what, where, when, and why. Their main findings include the types of work being registered, how the registrations of individuals and firms differ, when works are being registered relative to their date of creation and date of publication, the age distribution of authors in different creative fields, and the geographic distribution and concentration of registration claimants.
The registration data collected and reported are superior to those relied upon in prior literature and should therefore prove useful to lawmakers and scholars wishing to measure the effect of copyright law on creativity or otherwise reform the copyright law of the United States.

Congressional Overrides of Supreme Court Statutory Interpretation Decisions, 1967–2011

Matthew R. Christiansen & William N. Eskridge, Jr.

92 Texas L. Rev. 1317

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Over the past years, many law professors and other academics have undertaken the daunting task of coding the number of congressional overrides of Supreme Court decisions concerning statutory interpretation. In this article, Professors Christiansen and Eskridge present the results from their most recent empirical study identifying these overrides. Using improved methodologies and a better understanding of the inner workings of Congress, Christiansen and Eskridge have worked to identify every statutory override that has been passed in Congress since 1967. Based on this data, they analyze the relationship between the Supreme Court and Congress while also identifying several patterns inherent in the data. Christiansen and Eskridge identify several factors that increase the chance that Congress will override a decision of the Supreme Court. Finally, they consider several normative issues and present suggestions for the institutions that create and elaborate upon policy in the United States.

Justice at Work: Minimum Wage Laws and Social Equality

Brishen Rogers

92 Texas L. Rev. 1543
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Are minimum wage laws just? Existing legal academic debate implies that they are not. Drawing on neoclassical labor-market models, various legal scholars have argued that minimum wage laws increase unemployment and cause other inefficiencies, and therefore that legal scholars have argued that direct transfers to the working poor are a superior means of ensuring distributive justice. Accepting for the sake of argument that minimum wage laws have such economic effects, this Article nevertheless defends them on grounds of justice. It builds on well-worn arguments that a just state will not just redistribute resources but will also enable citizens to relate to one another as equals. This ideal of “social equality” is most commonly associated with republican and communitarian theories of justice, but it is also central to major strands of egalitarian liberalism. Professor Rogers argues that minimum wage laws advance social equality, and do so better than direct transfers in several ways. He states that they increase workers’ wages, which are a primary measure of the social value of work; they alter workplace power relationships by giving workers rights vis-a-vis employers; and they require employers and consumers to internalize costs of higher wages rather than mediating all distribution through the state. Professor Rogers concludes that minimum wage laws help ensure decent work, work that enhances rather than undermines workers’ self-respect. Reduced demand for extremely low-wage labor is a cost worth bearing to ensure decent work and may even be an affirmative good.

Dirty Harriet: The Restatement (Third) of Torts and the Causal Relevance of Intent

John Morris

92 Texas L. Rev. 1685

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Imagine a situation where eight tortfeasors, acting independently but simultaneously, negligently lean on a car, which is parked at a scenic overlook in the mountains. Their combined forces result in the car rolling over the edge of the mountain and plummeting to its destruction. The force of all but one of the tortfeasors constituted the same percent of the force necessary to propel the car over the edge. Now imagine that the owner of the car, Dirty Harriet, because of her slight build, only exerted one percent of the force necessary to propel the car over the edge, however Dirty Harriet, seeing an opportunity to replace her lemon of a car, acts purposefully to push the car over the edge. Under the Restatement (Third) of Torts, Harriet’s state of mind may be relevant to the question of who caused the car to be destroyed. In this Note, Mr. Morris proposes that, in Dirty Harriet-type cases, courts, who may be unwilling to remain faithful to the Restatement framework, should instead apply the traditional concerted action doctrine.