Taking Hearers Seriously

Burt Neuborne

91 Texas L. Rev. 1425

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Neuborne reviews Tamara R. Piety’s Brandishing the First Amendment: Commercial Expression in America.

No Mere “Matter of Choice”: The Harm of Accent Preferences and English-Only Rules

Braden Beard

91 Texas L. Rev. 1495

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In this Note, Mr. Beard discusses the legality of accent preferences and English-only rules.  Part I of this paper lays out the legal framework for these national origin discrimination claims.  Part II tells the stories of several plaintiffs who challenged English-only rules and accent-based hiring decisions.  Part III argues that many courts are doing a great disservice to the goals of Title VII in the way they treat these claims.  Part IV explores the harm caused by English-only rules and accent preferences based on the link between language and accent and one’s national origin.  To many immigrants, language and accent are very much a part of who they are, and are not as mutable as courts generally assume.  By forcing employees to cover their accents and native languages, employers attack and cause serious harm to the national origin identities of those employees.  Part V argues that after recognizing the severity of that harm, courts should analyze these claims differently and scrutinize employers’ business justifications more closely.

Can Insurgent Courts Be Legitimate Within International Humanitarian Law?

Parth S. Gejji

91 Texas L. Rev. 1525

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In this Note, Mr. Gejji argues that any interpretation of international humanitarian law (IHL) that seeks to legitimize insurgent courts leads to problematic solutions.  Part II identifies the goals motivating the project to legitimize insurgent courts, discusses why legitimizing insurgent courts within IHL could achieve these goals, notes some limiting principles of interpretation that should guide the discussion, and highlights the real dangers posed by insurgent courts.  Part III explores provisions in Common Article 3 of the Geneva Conventions 4 (CA3) and Additional Protocol II 5 (AP II) governing the passing of sentences in a non-international  armed  conflict (NIAC).  Part IV discusses the legal basis requirement found in CA3 and notes how a loose interpretation of this requirement allows for the existence of insurgent courts.  Part V, however, argues against a wholesale loosening of the legal basis requirement because of the impact such a loosening would have on state prosecution of insurgents and relates this discussion to the principle of the equality of belligerents.  Part VI examines the fair trial guarantees requirement in CA3, surveys the various methods of defining these guarantees, and proposes a definite list of guarantees that should apply in a NIAC.  Part VII disaggregates the analysis along the dimensions of the type of person to be tried in an insurgent court and the type of trial to occur in such a court, relates this disaggregation to the principle of the equality of belligerents, and argues that any interpretation of IHL that seeks to legitimize insurgent courts leads to problematic results.

Voluntary Incentive Auctions and the Benefits of Full Relinquishment

Michael Selkirk

91 Texas L. Rev. 1561

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In February 2012, the Federal Communications Commission (FCC) passed the Middle Class Tax Relief and Job Creation Act of 2012, authorizing the FCC to use voluntary incentive auctions as a mechanism for repurposing spectrum.  These auctions give television broadcasters, to which spectrum is currently tethered, the option to voluntarily sell their allocated spectrum back to the government.  The relinquished spectrum can then be relicensed for multiple uses and re-auctioned to companies that supply mobile data plans.  To participate, broadcasters have the option of (1) relocating from their current channel to a new channel that will be shared with another auction participant, (2) relocating to a new (but perhaps less desirable) frequency, or (3) fully relinquishing their spectrum.

In this Note, Mr. Selkirk argues that, from a policy and economic perspective, the third option—full relinquishment—best accomplishes the goal of reallocating spectrum.  Part II discusses the modern regulatory framework, focusing on the inadequate mechanisms for repurposing spectrum for higher value use and introduces the voluntary incentive auction.  Parts III and IV provide an overview of the Middle Class Tax Relief and Job Creation Act, and argue that full relinquishment is the optimal broadcaster choice to help curb the spectrum inadequacies facing the nation.  Part V outlines possible incentives to coax broadcasters to fully relinquish and program on other mediums.

The Wires Go to War: The U.S. Experiment with Government Ownership of the Telephone System During World War I

Michael A. Janson & Christopher S. Yoo

91 Texas L. Rev. 983

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One of the most distinctive characteristics of the U.S. telephone system is that it has always been privately owned, in stark contrast to the pattern of government ownership followed by virtually every other nation.  What is not widely known is how close the United States came to falling in line with the rest of the world.  For the one-year period following July 31, 1918, the exigencies of World War I led the federal government to take over the U.S. telephone system.  A close examination of this episode sheds new light into a number of current policy issues.  The history confirms that natural monopoly was not solely responsible for AT&T’s return to dominance and reveals that the Kingsbury Commitment was more effective in deterring monopoly than generally believed.  Instead, a significant force driving the re-monopolization of the telephone system was the U.S. Postmaster General, Albert Burleson—not Theodore Vail, president of AT&T.  It also demonstrates that universal service was the result of government-imposed emulation of the postal system, not, as some have claimed, a post hoc rationalization for maintaining monopoly.  The most remarkable question is, having once obtained control over the telephone system, why did the federal government ever let it go?  The dynamics surrounding this decision reveal the inherent limits of relying on war to justify extraordinary actions.  More importantly, it shows the difficulties that governments face in overseeing industries that are undergoing dynamic technological change and that require significant capital investments.

Remapping the Path Forward: Toward a Systemic View of Forensic Science Reform and Oversight

Jennifer E. Laurin

91 Texas L. Rev. 1051

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The 2009 report of the National Academy of Sciences (NAS) on the state of forensic science in the American criminal justice system has fundamentally altered the landscape for scientific evidence in the criminal process, and is now setting the terms for the future of forensic science reform and practice.  But the accomplishments of the Report must not obscure the vast terrain that remains untouched by the path of reform that it charts.  This Article aims to illuminate a critical and currently neglected feature of that territory: namely, the manner in which police and prosecutors, as upstream users of forensic science, select priorities, initiate investigations, collect and submit evidence, choose investigative techniques, and charge and plead cases in ways that have critical and systematic, though poorly understood, influences on the accuracy of forensic analysis and the integrity of its application in criminal cases.  By broadening our understanding of how forensic science is created and used in criminal cases—by adopting a systemic perspective—the Article points to a raft of yet unaddressed issues concerning the meaning of scientific integrity and reliability in the context of investigative decisions that are by and large committed to the discretion of decidedly unscientific actors.  Critically, the Article demonstrates that systemic dynamics affecting upstream use of forensic science might well undermine the reliability-enhancing goals of the reforms advocated by the National Academy Report.  As the NAS Report begins to set the agenda for active conversations around legislative and executive action to reform forensic science, it is critical to consider these questions.  Moreover, the Article suggests that the embrace of science as a unique evidentiary contributor within the criminal justice system problematizes some of the bedrock assumptions of American criminal procedure that have, to date, prevented more robust doctrinal intervention in the investigative stages and decisions that the Article explores.

What Do We Talk About When We Talk About the Constitution?

Akhil Reed Amar & Sanford Levinson

91 Texas L. Rev. 1119

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Amar and Levinson review Akhil Reed Amar’s America’s Unwritten Constitution: The Precedents and Principles We Live By and Sanford Levinson’s Framed: America’s 51 Constitutions and the Crisis of Governance.