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.

The Many American Constitutions

Aziz Rana

93 Texas L. Rev. 1163

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Professor Rana reviews Professor Tsai’s book on the history of alternative constitutions in the United States.

Executing Justice

Robert Weisberg

93 Texas L. Rev. 1179

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Professor Weisberg reviews Professor Liebman’s book on the criminal investigation and subsequent conviction and execution of Carlos DeLuna.

Avoiding the Anchor: An Analysis of the Minimum-Payment and 36-Month Disclosures Mandated by the CARD Act and How to Improve Cardholder Repayment Patterns

Angela K. Daniel

93 Texas L. Rev. 1201

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Many credit card users find themselves in insurmountable credit card debt. In an attempt to help consumers avoid such situations, the Credit Card Accountability Responsibility and Disclosure Act of 2009 requires that credit card issuers disclose the total costs of paying off a debt by paying the minimum payment each month and by paying the debt off in 36 months. Ms. Daniel explores the effectiveness of these disclosures in helping consumers get out of debt and concludes that these provisions could be improved in order better to protect consumers.

The New Cognitive Property: Human Capital Law and the Reach of Intellectual Property

Orly Lobel

93 Texas L. Rev. 789

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Contemporary law is expanding into the area of “cognitive property,” leading to the commodification of intellectual intangibles, including human capital. In this Article, Professor Lobel explores this phenomenon, focusing on the the increase in trade secret protection and the so-called “talent wars.” She uncovers the harms of this new cognitive property and analyzes these effects through the lens of new economic research about endogenous growth, labor-market search, and innovation networks. She argues that this rise in cognitive controls should be understood as the Third Enclosure Movement, which propertizes the intangibles of the human mind and stifles potential innovations.

Heart Versus Head: Do Judges Follow the Law or Follow Their Feelings?

Andrew J. Wistrich, Jeffrey J. Rachlinski & Chris Guthrie

93 Texas L. Rev. 855

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It is well established that juries are apt to convict or acquit a defendant based on how much sympathy they feel for the accused, but are Judges also susceptible to similar emotions? They certainly routinely espouse the adoption of a dispassionate perspective on litigants. In this Article, for the first time, experimental research is used in an attempt to measure whether judges allow their feelings to bias their decisions. Judge Wistrich and Professors Rachlinski and Guthrie collect data on over 1,800 state and federal trial judges and ultimately conclude that feelings do bias judges’ decisions.