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.

Archangel Problems: The SEC and Corporate Liability

Spencer P. Patton

92 Texas L. Rev. 1717

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Much ink has been spilled about the so-called “London Whale” scandal involving JP Morgan Chase & Co. that occurred in 2012. This is not surprising, given that the scandal is an accessible reference point in the leitmotif of corporate law and finance post-2008. But the London Whale case is more than that. It is a timely and illustrative example of some challenging and important problems facing government regulators in today’s financial markets. In particular, the London Whale case demonstrates that the Securities and Exchange Commission, the United States’ chief regulator of the nation’s solution, is increasingly a part of the problem rather than the solution.  In this Note, Mr. Patton examines the London Whale case in this light by taking a closer look at the implications the case has for America’s changing financial markets and for the Securities and Exchange Commission’s role in those markets.

Supremacies and the Southern Manifesto

Justin Driver

92 Texas L. Rev. 1053

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In March 1956, the overwhelming majority of senators and congressmen from the former Confederate states joined forces to issue the Southern Manifesto. That document marshaled a series of constitutional arguments contending that the Supreme Court incorrectly decided Brown v. Board of Education. Legal scholars initially lavished considerable attention on the Manifesto. Today, however, the Manifesto no longer occupies a central place in the American legal imagination. No law review article, or any other work written by a law professor, has appeared in more than fifty years that examines the Manifesto in a sustained fashion. Drawing on archival and other primary sources that law professors have previously neglected, Professor Driver contends that the Manifesto should be restored to a prominent position in legal scholarship because the document serves to recast two prominent debates that have occupied constitutional law scholars for decades. First, analyzing the Manifesto reveals that many southern politicians were far more legally sophisticated, calculating, and shrewd in defending white supremacy than legal scholarship generally suggests. Second, examining the remarkable public debates generated by the Manifesto demonstrates that, contrary to popular constitutionalism’s account, widespread support for judicial supremacy predated the Supreme Court’s articulation of the concept in Cooper v. Aaron. Although it may be tempting to view the Manifesto as promoting ideas that have no connection to current conditions, Professor Driver argues that the document continues to have resonance within the modern constitutional order.

The Lost World of Administrative Law

Daniel A. Farber & Anne Joseph O’Connell

92 Texas L. Rev. 1137

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In this Article, Professors Farber and O’Connell argue that the reality of the modern administrative state diverges considerably from the series of assumptions underlying the Administrative Procedure Act (APA) and classic judicial decisions that followed the APA. These assumptions called for statutory directives to be implemented by one agency led by Senate-confirmed presidential appointees with decision-making authority. The implementation (in the form of a discrete action) is presumed to be through statutorily mandated procedures and criteria, with judicial review to determine whether the reasons given by the agency at the time of its action match the delegated directions. They describe in depth this lost world on which current administrative law is based. They go on to explain how the realities of the modern administrative state have come to differ greatly from the intended circumstances. They then weigh the benefits and costs of this shift, tentatively concluding that the costs trump the benefits. Finally, they conclude that returning to this lost world is impossible and instead propose some possible reforms in all three branches of the federal government to make the match between current realities and administrative law stronger.

The Architects of the Gideon Decision: Abe Fortas and Justice Hugo Black

Abe Krash

92 Texas L. Rev. 1191

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In this Essay, Professor Krash examines the problems that Abe Fortas, the advocate for Clarence Gideon before the Supreme Court, and Justice Hugo Black, the writer of the opinion in the Gideon v. Wainwright decision, faced when addressing the Gideon issue and the manner in which they resolved these problems.