Matthew R. Christiansen & William N. Eskridge, Jr.
92 Texas L. Rev. 1317
Over the past years, many law professors and other academics have undertaken the daunting task of coding the number of congressional overrides of Supreme Court decisions concerning statutory interpretation. In this article, Professors Christiansen and Eskridge present the results from their most recent empirical study identifying these overrides. Using improved methodologies and a better understanding of the inner workings of Congress, Christiansen and Eskridge have worked to identify every statutory override that has been passed in Congress since 1967. Based on this data, they analyze the relationship between the Supreme Court and Congress while also identifying several patterns inherent in the data. Christiansen and Eskridge identify several factors that increase the chance that Congress will override a decision of the Supreme Court. Finally, they consider several normative issues and present suggestions for the institutions that create and elaborate upon policy in the United States.
92 Texas L. Rev. 1543
Are minimum wage laws just? Existing legal academic debate implies that they are not. Drawing on neoclassical labor-market models, various legal scholars have argued that minimum wage laws increase unemployment and cause other inefficiencies, and therefore that legal scholars have argued that direct transfers to the working poor are a superior means of ensuring distributive justice. Accepting for the sake of argument that minimum wage laws have such economic effects, this Article nevertheless defends them on grounds of justice. It builds on well-worn arguments that a just state will not just redistribute resources but will also enable citizens to relate to one another as equals. This ideal of “social equality” is most commonly associated with republican and communitarian theories of justice, but it is also central to major strands of egalitarian liberalism. Professor Rogers argues that minimum wage laws advance social equality, and do so better than direct transfers in several ways. He states that they increase workers’ wages, which are a primary measure of the social value of work; they alter workplace power relationships by giving workers rights vis-a-vis employers; and they require employers and consumers to internalize costs of higher wages rather than mediating all distribution through the state. Professor Rogers concludes that minimum wage laws help ensure decent work, work that enhances rather than undermines workers’ self-respect. Reduced demand for extremely low-wage labor is a cost worth bearing to ensure decent work and may even be an affirmative good.
Dana A. Remus
92 Texas L. Rev. 1599
Professor Remus reviews Tanina Rostain and Milton C. Regan, Jr.’s examination of the role attorneys played in the KPMG tax shelter fraud.
92 Texas L. Rev. 1617
Professor Koppelman responds to Michael Dorf’s review of his book, The Tough Luch Constitution and the Assault on Health Care Reform.
Thomas O. McGarity
92 Texas L. Rev. 1629
Professor McGarity responds to Daniel Farber’s review of his book, Freedom to Harm: The Lasting Legacy of the Laissez Faire Revival.
92 Texas L. Rev. 1637
Professor Sander responds to William Kidder and Angela Onwuachi-Willig’s article on affirmative action and the mismatch in higher education.
Brian Z. Tamanaha
92 Texas L. Rev. 1667
Professor Tamanaha responds to Alfred Brophy’s review of his book, Beyond the Formalist-Realist Divide: The Role of Politics in Judging.
92 Texas L. Rev. 1685
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.
Spencer P. Patton
92 Texas L. Rev. 1717
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.
92 Texas L. Rev. 1053
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.