Qualified Immunity and Constitutional-Norm Generation in the Post-Saucier Era: “Clearly Establishing” the Law Through Civilian Oversight of Police

Ryan E. Meltzer

92 Texas L. Rev. 1277

PDF Document

Since the Supreme Court ended the mandatory merits-first approach instituted in Saucier v. Katz, scholars have argued that the development of constitutional norms could come to a standstill. In this Note, Mr. Meltzer argues that the work of civilian external investigatory oversight bodies can serve as at least a partial antidote to this possible constitutional stasis. In particular, Mr. Meltzer advocates for the investigative findings and policy recommendations of agencies like the New York Civilian Complaint and Review Board to be given at least the same weight as internal police regulations and advisory reports by external compliance agencies, and possibly as much weight as regional appellate court opinions, in the qualified immunity analysis. Mr. Meltzer goes on to show that not only is this proposal consistent with the purposes of § 1983 litigation and the qualified immunity doctrine, but the work it envisions is already taking place at oversight boards around the nation. He then argues that the sole structural changes necessary to optimally implement this proposal relate to the formalization and publication of the agencies’ findings and recommendations.

Treaty Termination and Historical Gloss

Curtis A. Bradley

92 Texas L. Rev. 773

PDF Document

The termination of U.S. treaties provides an especially rich example of how governmental practices can provide a “gloss” on the Constitution’s separation of powers.  The authority to terminate treaties is not addressed specifically in the constitutional text and instead has been worked out over time through political–branch practice.  This practice, moreover, has developed largely without judicial review.  Despite these features, Congress and the President—and the lawyers who advise them—have generally treated this issue as a matter of constitutional law, rather than merely political happenstance.  Importantly, the example of treaty termination illustrates not only how historical practice can inform constitutional understandings, but also how these understandings can change.  Whereas it was generally understood throughout the nineteenth century that the termination of treaties required congressional involvement, the consensus on this issue disappeared in the early parts of the twentieth century, and today it is widely (although not uniformly) accepted that presidents have a unilateral power of treaty termination.  This shift in constitutional understandings did not occur overnight or in response to one particular episode but rather was the product of a long accretion of Executive Branch claims and practice in the face of congressional inaction.  This article examines the way in which historical practice has shaped the constitutional debates and understandings concerning this issue and is meant to help shed light on some of the interpretive and normative challenges associated with a practice-based approach to the separation of powers.

Tax, Command . . . or Nudge?: Evaluating the New Regulation

Brian Galle

92 Texas L. Rev. 837

PDF Document

This Article compares for the first time the relative economic efficiency of “nudges” and other forms of behaviorally inspired regulation against more common policy alternatives, such as taxes, subsidies, or traditional quantity regulation.  Environmental economists and some legal commentators have dismissed nudge-type interventions out of hand for their failure to match revenues and informational benefits taxes can provide.  Similarly, writers in the law and economics tradition argue that fines are generally superior to nonpecuniary punishments.

Drawing on prior work in the choice-of-instruments literature, and contrary to popular wisdom, Professor Galle shows that nudges may out-perform fines, other Pigouvian taxes, or subsidies in some contexts.  These same arguments may also imply the superiority of some traditional “command and control” regulations over their tax or subsidy alternatives.  Professor Galle then applies these lessons to a set of contemporary policy controversies, such as New York City’s cap on beverage portion sizes, climate change, retirement savings, and charitable contributions.

Improving Statutory Deadlines on Agency Action: Learning from the SEC’s Missed Deadlines Under the JOBS Act

Caitlin A. Bubar

92 Texas L. Rev. 995

PDF Document

The Securities and Exchange Commission (SEC) has received a great deal of negative attention for missing deadlines imposed by various provisions of the JOBS Act.  This Note argues that these missed deadlines were at least partially due to Congress’s problematic use of statutory deadlines.  Ms. Bubar begins by discussing the Administrative Procedures Act (APA), which sets forth the rulemaking procedures that an agency must follow, and also explains the legal implications of statutory deadlines, describing how they can increase the likelihood of a successful claim against an agency for unreasonable delay, affect a court’s evaluation of agency compliance with the APA, and affect “arbitrary and capricious” review.

Ms. Bubar then describes why statutory deadlines are used—to reduce regulatory delay, to align agency decision making with legislative intent, and to give Congress an easy way to narrow agency discretion in areas where it does not have expertise.  She also addresses the problems created by their use, explaining how deadlines reduce agency flexibility, exacerbate resource constraints, can result in decreased quality of rulemaking, and can be used by Congress as a political tool.  Using these purposes and problems as a framework, Ms. Bubar analyzes the use of statutory deadlines in the context of the SEC and concludes that while deadlines can accelerate regulatory action by the SEC and align the SEC’s rulemaking action with legislative intent, the SEC’s failure to meet its deadlines is at least partially due to Congress’s problematic use of deadlines.  She argues that, in the context of the SEC, statutory deadlines can have a positive effect on agency action, as long as they are not used in a problematic way.  Lastly, Ms. Bubar makes three recommendations for improving Congress’s use of deadlines.

A Status Quo Bias: Behavioral Economics and the Federal Preliminary Injunction Standard

James Powers

92 Texas L. Rev. 1027

PDF Document

In the patchwork quilt of differing standards and policy justifications for granting a preliminary injunction, many federal courts have noted that a preliminary injunction should be granted to preserve the status quo existing between the parties.  Certain courts have gone so far as to require higher burdens from plaintiffs requesting injunctions that would alter the status quo.  Judge Michael McConnell of the Tenth Circuit tried to justify these much criticized legal standards through behavioral economics studies.  Judge McConnell defended the higher burdens for preliminary injunctions interfering with the status quo by arguing that a party will be more affected by the loss of a benefit already possessed than one that the party only hopes to attain.

Using the rich experimental literature of behavioral law and economics (BLE), Mr. Powers demonstrates how BLE cannot justify Judge McConnell’s view for invoking the status quo in deciding whether to issue a preliminary injunction.  In Part II, Mr. Powers presents a brief summary of the standards governing federal courts’ adjudication of motions for preliminary injunction; paying special attention to how the status quo affects these standards.  Part III introduces the field of behavioral law and economics and summarizes the relevant phenomena: loss aversion, the endowment effect, status quo bias, and omission bias.  In Part IV, Mr. Powers argues that while some of these BLE-based phenomena can explain courts’ invocation of the status quo in preliminary injunction decision making, none can justify it. Mr. Powers goes on to endorse the position held by many that the status quo has no place in this area of the law.

Purging Patent Law of “Private Law” Remedies

Ted Sichelman

92 Texas L. Rev. 517

PDF Document

In this Article, Professor Sichelman rejects the fundamental “private law” premise of patent law remedies that courts should always attempt to make the patentee “whole” in the event of infringement because the overarching aim of patent law is to promote innovation, not to remedy private wrongs.  Specifically, make-whole damages may thwart optimal innovation incentives when they concern small components of complex products involving high-switching costs, generate large consumer deadweight losses, result in substantial duplicated costs during the pre-invention R&D process, or create transaction costs far in excess of the value of the invention.  In other situations, a patentee should be made more than whole.  For example, inducing socially valuable innovations that do not command large profits in the private market—such as drugs for rare diseases and technologies for the disabled—may require more than make-whole compensation.

More generally, Professor Sichelman argues that the statutory remedies provisions of the Patent Act rest on a flawed foundation.  Instead of correcting for private wrongs inflicted on private parties, patent law remedies should be tailored simply to promote the types and levels of innovation that most benefit society, taking into account administrative and error costs.  As such, Professor Sichelman proposes that the patent system and its associated remedies should be viewed as part of a public regulatory regime designed to further societal goals rather than a private law system that protects individual interests.

Understanding Behavioral Antitrust

Avishalom Tor

92 Texas L. Rev. 573

PDF Document

Behavioral antitrust—the application to antitrust analysis of empirical evidence of robust behavioral deviations from strict rationality—is increasingly popular and hotly debated by legal scholars and the enforcement agencies alike.  In this Article, Professor Tor shows, however, that both proponents and opponents of behavioral antitrust frequently and fundamentally misconstrue its methodology, treating concrete empirical phenomena as if they were broad hypothetical assumptions.  Because of this fundamental methodological error, scholars often make three classes of mistakes in behavioral antitrust analyses: first, they fail to appreciate the variability and heterogeneity of behavioral phenomena; second, they disregard the concrete ways in which markets, firms, and other institutions both facilitate and inhibit rational behavior by antitrust actors; and, third, they erroneously equate all deviations from standard rationality with harm to competition.  After establishing the central role of rationality assumptions in present-day antitrust and reviewing illustrative behavioral analyses across the field—from horizontal and vertical restraints, through monopolization, to merger enforcement practices—Professor Tor examines the three classes of mistakes, their manifestation, and their consequences in antitrust scholarship.  Besides providing guidance to future behavioral antitrust scholarship, Professor Tor’s Article concludes by discussing two sets of essential lessons that the behavioral approach already can offer to advance antitrust law and policy: one concerning the value of case-specific evidence in antitrust adjudication and enforcement, the other showing how antitrust law can and should account for systematic and predictable boundedly rational behavior that is neither constant nor uniform.