Parth S. Gejji
91 Texas L. Rev. 1525
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.
91 Texas L. Rev. 1561
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.
Michael A. Janson & Christopher S. Yoo
91 Texas L. Rev. 983
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.
Jennifer E. Laurin
91 Texas L. Rev. 1051
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.
Akhil Reed Amar & Sanford Levinson
91 Texas L. Rev. 1119
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.
Robert F. Williams
91 Texas L. Rev. 1149
Williams reviews Sanford Levinson’s Framed: America’s 51 Constitutions and the Crisis of Governance.
91 Texas L. Rev. 1165
Orbach reviews The Global Limits of Competition Law.
91 Texas L. Rev. 1171
Scaperlanda reviews Philip Kretsedemas’s The Immigration Crucible: Transforming Race, Nation, and the Limits of the Law.
Jane S. Schacter
91 Texas L. Rev. 1185
Schacter reviews Michael J. Klarman’s From the Closet to the Altar: Courts, Backlash, and the Struggle for Same-Sex Marriage.
91 Texas L. Rev. 1203
In this Note, Mr. Bah argues that one way to approach questions about the level of specificity required for jury agreement is by examining current state laws and their various jury agreement doctrines. Continuous course of conduct offenses in particular can be helpful in examining these types of questions. This Note focuses on one particular type of continuous course of conduct offenses—“continuous sexual abuse of a child” (CSA) statutes—that has become popular in the last two decades.
Part I provides a general overview of CSA statutes and their history. Part II briefly discusses the current constitutional doctrinal framework. Part III focuses on California and Texas to show what their respective case law says about jury unanimity, specificity requirements for unanimity, and the continuous course of conduct exception. Part IV provides an analysis of CSA statutes and will attempt to answer the questions of (1) whether these statutes are staying true to the purpose behind specificity in jury agreement and (2) whether these statutes may bump up against constitutional problems in the future. Part V discusses some of the possible ways to address current CSA statutes and then provides possible solutions for how to better address the problem of prosecuting child molesters.