The Intellectual Origins of (Modern) Substantive Due Process

Joshua D. Hawley

93 Texas L. Rev. 275

PDF Document

Almost fifty years after the Supreme Court revived the doctrine, substantive due process remains a puzzle. In this Article, Professor Hawley excavates the intellectual origins of modern substantive due process and relates that history to the doctrine’s development. Ultimately, he offers a thoroughly revised account of the modern doctrine’s beginnings, development, and meaning. This revised account challenges a good deal of conventional wisdom, including the claims of recent Lochner revisionists who argue that modern substantive due process is in one way or another an intellectual extension of the Lochner era. It further challenges the claims that the modern doctrine can be linked directly to the Constitution’s original meaning. Instead, this Article shows modern substantive due process for what it is: an original, modern, and controversial reading of liberty.

The Political Economy of Local Vetoes

David B. Spence

93 Texas L. Rev. 351

PDF Document

As the controversy over fracking continues to sweep the nation, many local communities have enacted ordinances banning the practice, creating conflicts between these ordinances and statewide regulation schemes. This has given rise to state–local preemption challenges within state courts. In this Article, Professor Spence analyzes these conflicts, focusing on the best way to distribute the costs and benefits of fracking and how courts have attempted to address these distributional concerns. He begins by describing the conflicts between state law and local ordinances and the court decisions that have resolved these preemption issues. He next discusses how future takings claims would affect the distribution of the costs and benefits of fracking.

Bottlenecks and Antidiscrimination Theory

Samuel R. Bagenstos

93 Texas L. Rev. 415

PDF Document

Professor Bagenstos reviews Professor Fishkin’s arguments for switching the focus of antidiscrimination law towards an antibottleneck theory.

Safe to Swipe?: Why Congress Should Amend the EFTA to Increase Debit Card User Protection

D. Alex Robertson

93 Texas L. Rev. 505

PDF Document

In this age of electronic payments, the use of debit cards has nearly exceeded that of credit cards and checks combined. Despite this popularity, debit cards are still subject to legislation passed in the 1970s, leaving users open to expansive liability in the event of fraud. In this Note, Mr. Robertson analyzes the Electronic Fund Transfer Act, which currently governs debit card usage, and suggests major revisions to better reflect the current market. He concludes that new legislation is needed to best protect debit card users from losses associated with fraud.

CREZ II, Coming Soon to a Windy Texas Plain Near You?: Encouraging the Texas Renewable Energy Industry Through Transmission Investment

R. Ryan Staine

93 Texas L. Rev. 521

PDF Document

As the world’s energy needs continue to increase, wind power is estimated to become a more prevalent source of renewable energy. However, there are many problems facing this emerging industry. In this Note, Mr. Staine analyzes how Texas, through the CREZ program, has tried to address one of these problems: transmitting wind generated power to customers. He evaluates the success of the CREZ program and provides suggestions for how it can be refined to further promote the wind power industry. Ultimately, Mr. Staine provides a framework for CREZ II, his proposed sequel to the original program.

Bankers and Chancellors

William W. Bratton & Michael L. Wachter

93 Texas L. Rev. 1

PDF Document

The Delaware Chancery Court recently squared off against the investment banking world with two rulings that tie Revlon violations to banker conflicts of interest. In this article, Professors Bratton and Wachter address the controversy stemming from these rulings, offering a sustained look at the banker–client advisory relationship. They begin by giving a detailed explanation of what investment bankers do when a company is sold. They then use economic analysis and a legal framework to examine potential conflicts of interests between bankers and clients, followed by a hard look at the Delaware Chancery Court’s two recent decisions on these issues. They conclude by experimenting with and analyzing various legal regimes that could be used to regulate the  banker–client relationship.

Regulating the Internet of Things: First Steps Toward Managing Discrimination, Privacy, Security, and Consent

Scott R. Peppet

93 Texas L. Rev. 85

PDF Document

Electronic sensors are now ubiquitous in our smartphones, cars, homes, electric systems, health-care devices, fitness monitors, and workplaces. These connected sensor-based devices create new types and unprecedented quantities of detailed, high-quality information about our everyday actions, habits, personalities, and preferences. Much of this undoubtedly increases social welfare. But this “Internet of Things” raises new and difficult questions as well. In this article, Professor Peppet shows that four inherent aspects of sensor-based technologies create very real discrimination, privacy, security, and consent problems. He asks what discrimination—racial, economic, or otherwise—will the Internet of Things permit, and how should we constrain socially obnoxious manifestations? As the Internet of Things generates ever more massive and nuanced data sets about consumer behavior, how should we protect privacy? How can we deal with the reality that sensors are particularly vulnerable to security risks? How should the law treat—and how much should policy depend upon—consumer consent in a context in which true informed choice may be impossible? In this novel legal work, Professor Peppet describes the new connected world we are creating, addresses four interrelated problems, and proposes concrete first steps for a regulatory approach to the Internet of Things

Sorting the Neighborhood

A. Mechele Dickerson

93 Texas L. Rev. 179

PDF Document

Professor Dickerson reviews Richard R. W. Brooks and Carol M. Rose’s historical account of property covenants excluding nonwhites from white neighborhoods.