Gabriel H. Markoff
90 Texas L. Rev. 1065
In this Note, Mr. Gabriel Markoff argues that the doctrine of issue exhaustion may pose an unjustifiable barrier to diverse interest group participation in the administrative rulemaking process. He first discusses the need for pluralistic participation in rulemakings and postulates that issue exhaustion exacerbates the well-known dominance of rulemaking participation by regulated parties. After tracing the history of issue exhaustion, he presents an original survey of D.C. Circuit case law showing that issue exhaustion likely remains a highly effective barrier to judicial review by parties that do not submit comments in rulemaking comment periods. Next, Mr. Markoff argues that issue exhaustion renders toothless the concerns of public interest groups, small businesses, and other poorly financed groups that do not have the financial means to submit detailed, technical comments in rulemakings. This, he argues, is because agencies only listen to those parties who can use their ability to seek judicial review as leverage to negotiate favorable rule content and interpretations. Mr. Markoff concludes by proposing that issue exhaustion be modified from a bright-line bar against review to a presumption in favor of allowing judicial review, one which could be rebutted by a showing of adequate participation or bad faith on the part of the party seeking review.
Deborah N. Pearlstein
90 Texas L. Rev. 797
The question of how to distinguish expert advice from undemocratic influence that has long surrounded the work of administrative agencies is made especially complex by the unique constitutional role of the military. Before one can tell whether civilian control is threatened, one must first have some understanding of what it is. Yet for all the intense focus in recent years on the legality of what the military does, where the modern military fits in our constitutional democracy has remained remarkably undertheorized in legal scholarship. Moreover, prevailing theories of civilian control in the more developed social- and political-theory literature of civil–military affairs view the Constitution’s separation of powers—in particular, the allocation of authority over the military to more than one branch of government—as a fundamental impediment to the maintenance of civilian control as they take it to be defined. As a result, there remains a significant gap in the development of a constitutional understanding of the meaning of civilian control. This Article is Professor Pearlstein’s effort to begin filling that gap, by examining whether and how the constraining advice of military professionals may be consistent with our modern separation of powers scheme.
Deborah A. Widiss
90 Texas L. Rev. 859
In this article, Professor Widiss examines congressional overrides and a problem she calls the “hydra problem.” First, she explores the challenge that overrides pose to the standard rule of precedent and defines the hydra problem. She then discusses in detail the multistep conversation between the courts and Congress regarding the standard of causation in employment discrimination statutes and imagines an alternative version of the story to illustrate how the interpretative conventions courts use to interpret overrides improperly minimize the significance of Congressional interventions relative to judicial interpretations. She also uses the rapid application of Gross v. FBL Financial Services, Inc. in other contexts and bills Congress has considered to override Gross to argue that the putative response that the Court indicates it expects from Congress is unreasonably difficult for Congress to achieve and could cause significant new problems. Finally, Professor Widiss argues that courts should instead adopt interpretive rules that more fairly respect the institutional realities of Congress because this would better permit overrides to play their expected role as a means for Congress to signal disagreement with judicial interpretations of statutes and promote the orderly and consistent development of statutory law.
Alexandra D. Lahav
90 Texas L. Rev. 571
The civil justice system tolerates inconsistent outcomes in cases brought by similarly situated litigants. One reason for this is that in cases such as Wal-Mart Stores, Inc. v. Dukes,1 the Supreme Court has increasingly emphasized liberty over equality. Litigants’ right to a “day in court” has overshadowed their right to equal treatment. However, an emerging jurisprudence at the district court level is asserting the importance of what this Article calls “outcome equality”—similar results reached in similar cases. Taking the example of mass tort litigation, this Article explains how innovative procedures such as sampling are a solution to the problem of inconsistent outcomes. Outcome equality, achieved through statistical adjudication, is gaining force on the ground. Despite the Supreme Court’s principled stance in favor of liberty in a series of recent opinions, a victory for outcome equality is good for our civil justice system.
To date, the discussion about civil-litigation reform has focused on the conflict between the individual’s right to participation and society’s interest in the efficient disposition of the great volume of outstanding litigation. This conflict is real and is particularly troublesome in mass torts, where tens of thousands of plaintiffs file related cases, making it impossible for the courts to hold a hearing for each claimant. But the fixation on this conflict ignores the fact that an individual’s right to equal treatment is also a critical value and can conflict with the individual’s right to participation. This Article reframes the debate about procedural justice in the mass tort context as a conflict between liberty and equality rather than liberty and efficiency. The rights at stake are not only the individual’s right to a day in court to pursue his claim as he wishes, but also the right to be treated as others in similar circumstances are treated.
This Article defends district court attempts to achieve equality among litigants by adopting statistical methods and advocates greater rigor in the use of these methods so that courts can more effectively promote outcome equality.
Anthony V. Alfieri
90 Texas L. Rev. 635
This Review offers an ethical defense of community lawyering against the backdrop of W. Bradley Wendel’s important new book, Lawyers and Fidelity to Law. Alfieri feels that by defending a theory of legal ethics that places fidelity to law instead of client or community interests at the core of lawyers’ obligations, Wendel seeks to rehabilitate the idea of legitimacy as a normative ideal for lawyers and to channel lawyers into a formal, procedural system of advocacy and counseling largely independent of substantive-justice objectives. He argues that Wendel’s transformation of the evaluative framework of legal ethics from the concerns of ordinary morality and substantive justice to the considerations of political legitimacy and process-oriented legality exposes community lawyers to new terms of normative criticism and erodes the justification of their crucial work in American law and society.
Katherine R. Kruse
90 Texas L. Rev. 657
In Fidelity to Law, Wendel presents and defends such a comprehensive theory of lawyering with two interrelated arguments: a functional argument that law deserves respect because of its capacity to settle normative controversy in a morally pluralistic society and a normative argument that law deserves respect because democratic lawmaking processes respect the equality and dignity of citizens. Professor Kruse’s review focuses on one of the links in the chain of Wendel’s normative-all-the-way-down argument: his move from the premise of moral pluralism to his conclusion that the function of law is to settle normative controversy in society. Kruse questions Wendel’s move on both practical and theoretical grounds. While Wendel argues that we need to settle such controversies so that we can move on and organize our affairs despite our deep disagreement about values, Kruse argues that efforts to unsettle law need not be seen as a threat, and that the continual ebb and flow of normative controversy should be viewed as an incident of — rather than an impediment to — a free and just society.
90 Texas L. Rev. 673
In his review of W. Bradley Wendel’s Lawyers and Fidelity to Law, Professor David Luban classifies the book as a major work that deserves careful study. However, he finds Wendel’s position to be one of “decency at odds with itself.” He points out that Wendel recognizes deep problems in our legal institutions, and yet advocates near absolute obedience to that authority. After examining the inconsistency in Wendel’s approach, Luban concludes that while fidelity to law is a virtue, it is no substitute for conscience.
Stephen L. Pepper
90 Texas L. Rev. 691
William H. Simon
90 Texas L. Rev. 709
In his Review of Bradley Wendel’s Lawyers and Fidelity to Law, Professor Simon addresses the authoritarian theme that he identifies as persistent throughout the book. He argues that neither libertarianism nor authoritarianism is a plausible starting point for a general approach to legal ethics. Further, he feels that in gesturing toward positivism and surrendering to less reflective authoritarian impulses, Wendel’s argument underestimates the extent to which social order depends on informal as well as formal norms and adopts a utopian attitude toward constituted power. He concludes that the book treats as analytical propositions what are in fact empirical assertions for which Wendel has no evidence.
W. Bradley Wendel
90 Texas L. Rev. 727
Professor Wendel responds to five professors who critically reviewed his recent book, Lawyers and Fidelity to Law.