Science and Policy in Setting National Ambient Air Quality Standards: Resolving the Ozone Enigma

Thomas O. McGarity

93 Texas L. Rev. 1783

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Professor McGarity examines the Environmental Protection Agency’s (EPA’s) ozone “rulemakings” in order to better understand the interaction of science and policy in promulgating national ambient air quality standards (NAAQS). He concludes that the EPA’s approach to NAAQS, though not very sensitive to the costs involved, has managed to bring significant reduction in emissions of pollutants while not causing serious economic outcomes.

Constructing Evidence and Educating Juries: The Case for Modular, Made-In-Advance Expert Evidence About Eyewitness Identifications and False Confessions

Jennifer L. Mnookin

93 Texas L. Rev. 1811

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Psychological testimony on the actual importance of certain kinds of evidence, such as eyewitness testimony and confession, has grown in the past few decades. The importance of understanding this kind of evidence has been highlighted by the many people who were convicted on eyewitness testimony but later exonerated by DNA evidence. Expert psychological testimony, however, is expensive and there are not enough experts to testify in every criminal case. Therefore, Professor Mnookin argues that premade, modular testimony should be created to be given to juries on these topics.

Science Disputes in Abortion Law

John A. Robertson

93 Texas L. Rev. 1849

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Professor Robertson examines several representative disputes in abortion law that require courts to decide the constitutionality of abortion restrictions based on their scientific basis. He concludes that in this area of the law the specific legal question tends to control the outcome more than the validity of the science. He proposes that this may be true for other areas of the law as well.

Defining Death: Getting It Wrong for All the Right Reasons

Robert D. Truog

93 Texas L. Rev. 1885

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The “dead donor rule” (DDR) is an implicit rule that controls the procurement of organs by, for instance, forbidding physicians from harvesting vital organs from living patients. Professor Truog provides a detailed scientific discussion on how science defines death and concludes that, under current law, patients may be legally dead but not dead by scientific standards, which would not conform with the DDR. He then examines the options available to society if its current definition of death does not conform with the DDR.

On Liberty and the Fourteenth Amendment: The Original Understanding of Lockean Natural Rights Guarantees

Steven G. Calabresi & Sofia M. Vickery

93 Texas L. Rev. 1299

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The Supreme Court has taken the position that the Fourteenth Amendment protects rights that are deeply rooted in this country’s history and tradition. In this Article, Professor Calabresi and Ms. Vickery seek to understand which rights this includes. For that purpose, Calabresi and Vickery examine how states’ Lockean Natural Rights Guarantees were understood at the time of the adoption of the Fourteenth Amendment.

Sovereign and State: A Democratic Theory of Sovereign Immunity

Corey Brettschneider & David McNamee

93 Texas L. Rev. 1229

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The doctrine of sovereign immunity is riddled with different interpretations and criticisms, ranging from monarchical defenses to populist rejections. In this Article, Professor Brettschneider and Mr. McNamee reject the dominant views of sovereign immunity in favor of a theory that uses democratic principles to explain why and when sovereign immunity is necessary. Brettschneider and McNamee conclude that such a theory must distinguish between “state action” and “sovereign action.”


Adrian Vermeule

93 Texas L. Rev. 1547

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Professor Vermeule seeks to answer the question Professor Hamburger posited in his book title: Is Administrative Law Unlawful?