91 Texas L. Rev. 543
The doctrine of “severability” permits a court to excise the unconstitutional portion of a partially unconstitutional statute in order to preserve the operation of any uncontested or valid remainder. Severability figures centrally in a broad array of constitutional litigation, including recent litigation over the “individual mandate” provision of the Patient Protection and Affordable Care Act. Nevertheless, the doctrine remains underexplored. In particular, no commentator has thoroughly examined choice-of-law rules pertaining to its application. This Article aims to fill that void. The Article contends that in recent decisions the Supreme Court has quietly established the severability of state statutes in federal court to be a matter of general federal common law, and that this doctrine is not only inconsistent with dozens of cases decided since Erie Railroad Co. v. Tompkins, but also displaces a large body of diverse state law without constitutional authorization or a supporting federal interest. The new doctrine thus challenges standard accounts of the limits of federal common law and calls into question the contemporary vitality of Erie’s principle of judicial federalism. The Article closes by proposing an alternative that would harmonize the precedent, help to revitalize Erie, and honor the bounds of Article III judicial power.
Alfred L. Brophy
91 Texas L. Rev. 601
Brophy reviews David M. Rabban’s Law’s History: American Legal Thought and the Transatlantic Turn to History.
Brian Z. Tamanaha
91 Texas L. Rev. 615
Tamanaha reviews David M. Rabban’s Law’s History: American Legal Thought and the Transatlantic Turn to History.
91 Texas L. Rev. 633
Dinan reviews Jed Handelsman Shugerman’s The People’s Courts: Pursuing Judicial Independence in America.
Mark S. Hurwitz
91 Texas L. Rev. 651
Hurwitz reviews Jed Handelsman Shugerman’s The People’s Courts: Pursuing Judicial Independence in America.
91 Texas L. Rev. 665
In this Note, Mr. Padis argues that binding arbitration clauses in consumer and employment contracts should continue to be enforced because arbitration provides employees and consumers important advantages. At the same time, however, consumer and employment arbitration must be seriously reformed. The Note concludes that the reform should be sensitive to the different concerns that arise from different types of disputes, instead of the blunderbuss approaches that have emerged out of Congress and the Supreme Court.
91 Texas L. Rev. 711
In this Note, Mr. Watterson seeks to address problems associated with regulating informal value transfer systems (IVTS), particularly in the remittance context, by proposing that policy makers focus on encouraging consumers to use formal, transparent money transfer channels. Reducing legitimate demand for underground services would decrease the popularity of underground firms and thus the opportunity for criminals to exploit them. Further, if consumers have viable alternative options to underground firms, vigorous enforcement becomes far less problematic. Ultimately resolving the challenges that these channels present is only possible if formal channels can compete with underground firms; otherwise, the demand for underground services will continue to undermine the U.S. anti-money laundering scheme. This Note argues that the best approach to money laundering is making compliance easier and cheaper. This Note proposes simplifying our current regulatory regime through the enactment of a national regulatory scheme that is charged with enacting policies that will make formal channels more competitive.
Michael J. Burstein
91 Texas L. Rev. 227
Contracting over information is notoriously difficult. Nearly fifty years ago, Kenneth Arrow articulated a “fundamental paradox” that arises when two parties try to exchange information. To complete such a transaction, the buyer of information must be able to place a value on the information. But once the seller discloses the information, the buyer can take it without paying. The conventional solution to this disclosure paradox is intellectual property. If the information is protected by a patent or a copyright, then the seller can disclose the information free in the knowledge that the buyer can be enjoined against making, using, or selling it without permission. This account of information exchange forms the basis for an increasingly popular argument in favor of strong and broad intellectual property rights for the purpose of overcoming the disclosure paradox and thereby facilitating the development and commercialization of ideas. That argument, however, rests on assumptions about the nature of information that are neither theoretically nor empirically justified.
In this article, Burstein explains that, contrary to the conventional account of the disclosure paradox, information is not always nonexcludable and is not always a homogeneous asset. Instead, information is complex and multifaceted, subject to some inherent limitations but also manipulable by its holders. These characteristics give rise to a range of strategies for engaging in information exchange, of which intellectual property is only one. Information holders can use the characteristics of information itself as well as contractual and norms-based mechanisms and other legal or business strategies to achieve exchange. And examples drawn from fields as diverse and disparate as software and biotechnology show that entrepreneurs and inventors use these strategies alone or in combination to effectively link their ideas with capital and development skills, often without intellectual property appearing to play a significant role in the transaction. Intellectual property is therefore not necessary to promote robust markets for information and is, in fact, just as contingent and context-specific a solution to the paradox as the alternatives described here. At the very least, then, there is reason to doubt that commercialization theories founded upon information exchange provide a stand-alone justification for intellectual property. Burstein urges caution in policy interventions that seek to respond to the disclosure paradox and sets the stage for future empirical research to better understand the dynamics of information-exchange strategies and the social welfare costs and benefits that may accompany them.
Einer Elhauge & Alex Krueger
91 Texas L. Rev. 283
Courts and commentators are sharply divided about how to assess reverse payment patent settlements under antitrust law. The essential problem is that a PTO-issued patent provides only a probabilistic indication that courts would hold the patent is actually valid and infringed, and parties have incentives to structure reverse payment settlements to exclude entry for longer than this patent probability would merit. Some favor comparing the settlement exclusion period to the expected litigation exclusion period, but this requires difficult case-by-case assessments of the probabilities of patent victory. Others instead favor a formal scope of patent test that allows such settlements for non-sham patents if the settlement does not delay entry beyond the patent term, preclude non-infringing products, or delay non-settling entrants. However, the formal scope of patent test excludes entry for longer than merited by the patent strength, and it provides no solution when there is either a significant dispute about infringement or a bottleneck issue delaying other entrants. This paper provides a way out of this dilemma. It proves that when the reverse payment amount exceeds the patent holder’s anticipated litigation costs, then under standard conditions the settlement will, according to the patent holder’s own probability estimate, exclude entry for longer than both the expected litigation exclusion period and the optimal patent exclusion period, which both harms consumer welfare and undermines optimal innovation incentives. Further, whenever a reverse payment is necessary for settlement, it will also have those same anticompetitive effects according to the entrant’s probability estimate. This proof thus provides an easily administrable way to determine when a reverse payment settlement is necessarily anticompetitive, without requiring any inquiry into the patent merits. We also show that, contrary to conventional wisdom, patent settlements without any reverse payment usually (but not always) exceed both the expected litigation exclusion period and the optimal patent exclusion period, and we suggest a procedural solution to resolve such cases.
91 Texas L. Rev. 331
Coombs reviews David M. Dorsen’s Henry Friendly: Greatest Judge of His Era.