Anthony V. Alfieri
90 Texas L. Rev. 635
This Review offers an ethical defense of community lawyering against the backdrop of W. Bradley Wendel’s important new book, Lawyers and Fidelity to Law. Alfieri feels that by defending a theory of legal ethics that places fidelity to law instead of client or community interests at the core of lawyers’ obligations, Wendel seeks to rehabilitate the idea of legitimacy as a normative ideal for lawyers and to channel lawyers into a formal, procedural system of advocacy and counseling largely independent of substantive-justice objectives. He argues that Wendel’s transformation of the evaluative framework of legal ethics from the concerns of ordinary morality and substantive justice to the considerations of political legitimacy and process-oriented legality exposes community lawyers to new terms of normative criticism and erodes the justification of their crucial work in American law and society.
Katherine R. Kruse
90 Texas L. Rev. 657
In Fidelity to Law, Wendel presents and defends such a comprehensive theory of lawyering with two interrelated arguments: a functional argument that law deserves respect because of its capacity to settle normative controversy in a morally pluralistic society and a normative argument that law deserves respect because democratic lawmaking processes respect the equality and dignity of citizens. Professor Kruse’s review focuses on one of the links in the chain of Wendel’s normative-all-the-way-down argument: his move from the premise of moral pluralism to his conclusion that the function of law is to settle normative controversy in society. Kruse questions Wendel’s move on both practical and theoretical grounds. While Wendel argues that we need to settle such controversies so that we can move on and organize our affairs despite our deep disagreement about values, Kruse argues that efforts to unsettle law need not be seen as a threat, and that the continual ebb and flow of normative controversy should be viewed as an incident of — rather than an impediment to — a free and just society.
90 Texas L. Rev. 673
In his review of W. Bradley Wendel’s Lawyers and Fidelity to Law, Professor David Luban classifies the book as a major work that deserves careful study. However, he finds Wendel’s position to be one of “decency at odds with itself.” He points out that Wendel recognizes deep problems in our legal institutions, and yet advocates near absolute obedience to that authority. After examining the inconsistency in Wendel’s approach, Luban concludes that while fidelity to law is a virtue, it is no substitute for conscience.
Stephen L. Pepper
90 Texas L. Rev. 691
William H. Simon
90 Texas L. Rev. 709
In his Review of Bradley Wendel’s Lawyers and Fidelity to Law, Professor Simon addresses the authoritarian theme that he identifies as persistent throughout the book. He argues that neither libertarianism nor authoritarianism is a plausible starting point for a general approach to legal ethics. Further, he feels that in gesturing toward positivism and surrendering to less reflective authoritarian impulses, Wendel’s argument underestimates the extent to which social order depends on informal as well as formal norms and adopts a utopian attitude toward constituted power. He concludes that the book treats as analytical propositions what are in fact empirical assertions for which Wendel has no evidence.
W. Bradley Wendel
90 Texas L. Rev. 727
Professor Wendel responds to five professors who critically reviewed his recent book, Lawyers and Fidelity to Law.
Sidney K. Smith
90 Texas L. Rev. 743
This Note proposes that Congress should enact a federal standard of forum non conveniens that would preempt state forum non conveniens law in transnational cases. A legislative standard of forum non conveniens would clarify the federal doctrine and assist in resolving the myriad circuit splits surrounding forum non conveniens in federal court. Additionally, the federal standard would preempt state forum non conveniens law in transnational cases, creating uniformity between the state and federal courts. Not only
would a uniform standard limit the endless forum jockeying of both plaintiffs and defendants in these cases, it would also allow more federal control over cases that potentially implicate important foreign-relations issues.
Lindsey A. Mills
90 Texas L. Rev. 443
Lindsey A. Mills analyzes the issues and implications surrounding Congress’s enactment of the Visual Artists Rights Act (VARA) in 1990, which, inter alia, provides moral rights protection to creators of artistic work. Although Mills recognizes certain social benefits associated with the protection of moral rights, particularly the incentives to promote artistic creation and society’s right to preserve irreplaceable works of art, she argues that such a law, by taking away ownership rights that purchasers of artwork would otherwise have, diminishes the economic value of the artwork in question and further, to the extent that artistic expression is deemed desirable, harms society as a whole. After weighing these interests against each other, she concludes that moral rights protection has no place in the United States, let alone as part of the Copyright Act.
Karson K. Thompson
90 Texas L. Rev. 465
In this Note, Mr. Karson Thompson explores the vulnerability of America’s internet networks and the various proposals that have been made to solve the cybersecurity problem. Thompson explores the history of the Internet—from its inception as ARPANET to its current status—and the major security issues that plague it. He then discusses the role played in maintaining internet security by both the executive and legislative branches of government and proposes a new framework—one that takes power away from the executive as a means of ensuring a stable and transparent cybersecurity policy. Thompson concludes that the existing framework is an ineffective way of ensuring the security of the Internet, and recent events in Egypt should provide an impetus for reform.
Colleen V. Chien
90 Texas L. Rev. 283
In this article, Professor Colleen Chien examines if, and to what extent, a patent’s acquired characteristics can be used to determine whether that patent is likely to end up in litigation. Although only around 1% of patents are ever litigated, patent lawsuits are disruptive and costly. Furthermore, their unpredictability makes patent litigation a practically uninsurable risk, causing companies to expend valuable resources accumulating patents that they believe might be asserted against them in the hope of preventing future litigation. To determine whether a patent’s acquired characteristics—those qualities that a patent develops after its issuance—can be used to enhance the predictability of patent litigation, Chien examines the relationship between eventual litigation and several acquired characteristics: changes in ownership, continued investment in the patent by the owner, collateralization, and citation to the patent.
Finding that litigated patents have markedly different acquired characteristics than unlitigated patents along all dimensions studied, and that these characteristics develop prior to litigation, Chien argues that acquired characteristics can be used to develop models that will enhance the predictability of patent litigation. She also asserts that, by highlighting the relationship between a patent owner’s identity and the likelihood of patent litigation, her findings argue in favor of reforming the patent-notice system to provide better information regarding patent ownership and transfer status in order to enhance the predictability of patent litigation.