The Soldier, the State, and the Separation of Powers

Deborah N. Pearlstein

90 Texas L. Rev. 797

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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.

Undermining Congressional Overrides: The Hydra Problem in Statutory Interpretation

Deborah A. Widiss

90 Texas L. Rev. 859

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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.

The Madisonian Constitution: Rightly Understood

Benjamin Kleinerman

90 Texas L. Rev. 943

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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.

The Goldilocks Executive

Saikrishna B. Prakash & Michael D. Ramsey

90 Texas L. Rev. 973

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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.

Placing the Foreign Corrupt Practices Act on the Tracks in the Race for Amnesty

Stephen A. Fraser

90 Texas L. Rev. 1009

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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.

Improving Tax Incentives for Historic Preservation

David J. Kohtz

90 Texas L. Rev. 1041

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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.

The Invisible Barrier: Issue Exhaustion as a Threat to Pluralism in Administrative Rulemaking

Gabriel H. Markoff

90 Texas L. Rev. 1065

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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.

Three Strikes and You‘re In: Why the States Need Domestic Violence Databases

Joyce Y. Young

90 Texas L. Rev. 771

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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.

Predicting Violence

Shima Baradaran & Frank L. McIntyre

90 Texas L. Rev. 497

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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.

The Case for “Trial by Formula”

Alexandra D. Lahav

90 Texas L. Rev. 571

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The civil justice system tolerates inconsistent outcomes in cases brought by similarly situated litigants. One reason for this is that in cases such as Wal-Mart Stores, Inc. v. Dukes,1 the Supreme Court has increasingly emphasized liberty over equality. Litigants’ right to a “day in court” has overshadowed their right to equal treatment. However, an emerging jurisprudence at the district court level is asserting the importance of what this Article calls “outcome equality”—similar results reached in similar cases. Taking the example of mass tort litigation, this Article explains how innovative procedures such as sampling are a solution to the problem of inconsistent outcomes. Outcome equality, achieved through statistical adjudication, is gaining force on the ground. Despite the Supreme Court’s principled stance in favor of liberty in a series of recent opinions, a victory for outcome equality is good for our civil justice system.

To date, the discussion about civil-litigation reform has focused on the conflict between the individual’s right to participation and society’s interest in the efficient disposition of the great volume of outstanding litigation. This conflict is real and is particularly troublesome in mass torts, where tens of thousands of plaintiffs file related cases, making it impossible for the courts to hold a hearing for each claimant. But the fixation on this conflict ignores the fact that an individual’s right to equal treatment is also a critical value and can conflict with the individual’s right to participation. This Article reframes the debate about procedural justice in the mass tort context as a conflict between liberty and equality rather than liberty and efficiency. The rights at stake are not only the individual’s right to a day in court to pursue his claim as he wishes, but also the right to be treated as others in similar circumstances are treated.
This Article defends district court attempts to achieve equality among litigants by adopting statistical methods and advocates greater rigor in the use of these methods so that courts can more effectively promote outcome equality.