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?

Agency for International Development v. Alliance for Open Society International: An Alternative to Aid in Analyzing Free Speech Concerns Raised by Government Funding Requirements

Nicholas Bruno

93 Texas L. Rev. 1569

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In 2003, Congress created the Leadership Act, which allowed federal funding to be given to NGOs in order to battle HIV/AIDS. This act contained a requirement that funding could only be given to NGOs that explicitly oppose prostitution. In Agency for International Development v. Alliance for Open Society International, the Supreme Court held that this requirement violated NGOs freedom of speech and held it invalid. In light of this decision, Mr. Bruno proposes a new way of analyzing restrictions on freedom of speech that are required to gain access to federal funding. Mr. Bruno concludes that such requirements should be allowed unless the potential recipient of the funding would have no opportunity to engage in the proposed speech without federal funding.

Theorizing Disability Discrimination in Civil Commitment

David D. Doak

93 Texas L. Rev. 1589

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The decision to involuntarily commit a person to a mental health facility has weighty consequences for that person’s life, including consequences after release from the facility. In this Note, Mr. Doak examines discrimination against people with mental health illnesses in both the decision to involuntarily commit them as well as failure to accommodate these mental illnesses in mental health facilities. Mr. Doak explores current ways to protect people from this discrimination under the Americans with Disabilities Act as well as improvements that could be made to current law.

The Fragmentation of Standing

Richard H. Fallon, Jr.

93 Texas L. Rev. 1061

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The application of the doctrine of standing has become less and less predictable since the Supreme Court’s adoption of a tripartite test for standing in the 1970s. Professor Fallon analyzes the Court’s decisions in standing cases in order to discern patterns in the Court’s application of this test. Fallon concludes that the Supreme Court and legal scholars should embrace the fragmentation of the doctrine of standing and look to discernable patterns in the cases to find general rules of application for different contexts.

Does “Public Use” Mean the Same Thing It Did Last Year?

Mark A. Lemley

93 Texas L. Rev. 1119

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The America Invents Act (AIA) brought significant change to America’s patent system by moving from a “first to invent” to a “first to file” system. Some commentators have argued that the AIA also redefined the meaning of “public use” such that secret commercial uses by the inventor are no longer considered prior art. Professor Lemley contends that this assertion is unfounded as a matter of statutory interpretation. Furthermore, Lemley argues that reading the AIA in this way would be an unwise policy decision.