Volume 88, Issue 1

Articles

On the Origins of Originalism Prof. Jamal Greene
88 Texas L. Rev. 1 (2009)

In this Article, Professor Greene compares the broad appeal of originalism in the United States with its relative lack of popularity in other constitutional democracies. He offers several hypotheses as to the influences that cause the American culture to accept originalism much more readily than other nations, ultimately concluding that the debate over originalism in the United States should be approached in ethical terms.

Constitutional interpretation is an important facet of the judicial system in many countries throughout the world. As is the case in the United States, judicial restraint and strict adherence to constitutional principles are encouraged in many judicial systems internationally. A number of factors make the judicial systems in Canada and Australia particularly comparable to the American system. Nevertheless, the historicist-style originalism that is popular in the United States lacks support in both of these countries. Greene offers six hypotheses for this phenomenon: the canonizing influence of time; the revolutionary character of American sovereignty; the rights revolution of the Warren and Burger Courts; the politicization of the judicial-nomination process in the United States; the accommodation of an assimilative, as against a pluralist, ethos; and a relatively evangelical religious culture. Greene concludes that these hypotheses, in turn, suggest that the originalist argument in the United States is a form of ethical argument, and the debate over originalism should be framed as such.

Responses in See Also:

Comparative Originalism
 
 Prof. David Fontana

In response to Prof. Greene’s article, Prof. Fontana discusses some complications of Prof. Greene's arguments. Prof. Fontana argues that comparing the United States with Canada and Australia involves comparing quite different countries, because the Canadian and Australian constitutions reorganized preexisting institutions, whereas the United States had more of a nation-creating, revolutionary constitution. Other countries that arose out of more revolutionary events, such as certain post-colonial African and Latin American nations, have also tended to feature originalist arguments.

The Functions of Ethical Originalism
 
 Prof. Richard Primus

In his Response to Professor Greene’s Article, Professor Primus contends that the stakes of originalist argument can go well beyond any particular case in which originalist arguments are made. He identifies three functions of ethical-originalist argument that go beyond the realm of deciding particular cases. First, originalist argument can establish the content of American history as a value in itself. Second, it can help to legitimate the constitutional system by creating an affinity between the present generation and the generation of heroic constitution makers. And third, it can establish a particular speaker as the authoritative bearer of the American constitutional tradition, thus empowering him to arbitrate questions in the name of that tradition.
Treaties as "Part of Our Law" Prof. Ernest A. Young
88 Texas L. Rev. 91 (2009)

In this Article, Professor Young discusses the implementation of treaties as part of domestic law in the United States. He argues that the Supreme Court’s approach to treaty interpretation should be no different than the Court’s approach to interpreting statutes and other forms of domestic law.

Professor Young notes that The Paquete Habana and the Supremacy Clause of the Constitution clearly indicate that treaties are to be considered “part of our law.” Internationalists interpret The Paquete Habana to require courts to presume that treaties are self-executing and defer to supranational bodies’ interpretation of treaties. However, Young argues that recent cases interpreting the Vienna Convention on Consular Relations cast doubt on the internationalist position. He concludes that treaties, like ordinary forms of domestic federal law, are often not self-executing and should be interpreted by the Supreme Court based on domestic common law norms rather than international concerns.

Responses in See Also:

Rewriting the Roberts Court’s Law of Treaties
 
 Prof. John T. Parry

In his Response to Professor Young’s article, Professor Parry evaluates Young’s assertion that he is defending Medellín even as he pointedly fails to endorse the Court’s reasoning. He also critiques areas in which he finds Young’s reasoning incomplete: his argument that federal courts should give no deference to a foreign or international tribunal’s treaty interpretation; his broad assertion that some treaties are non-self-executing because of vague treaty language; and his doctrinal conclusion that the Supremacy Clause does not require self-execution.

Book Reviews

Neo-orthodoxy in Academic Freedom Prof. J. Peter Byrne
88 Texas L. Rev. 143 (2009)

Professor Byrne reviews two recent books on academic freedom: Matthew Finkin and Robert Post’s For the Common Good: Principles of American Academic Freedom and Stanley Fish’s Save the World on Your Own Time.  Professor Byrne suggests that academic freedom should be perceived as a method for preserving professional judgment in the scholarly pursuit of truth rather than as a constitutional right.  He compares each book’s contribution to this view of academic freedom.
Academic Freedom: How Odd is That? Prof. Stanley Fish
88 Texas L. Rev. 171 (2009)

Professor Fish reviews Matthew Finkin and Robert Post’s book, For the Common Good: Principles of American Academic Freedom.  In his review, Fish argues that Finkin and Post are too quick to cast aside justifiable and coherent theological objections to academic freedom.  Fish also notes that Finkin and Post’s defense of absolute academic freedom is inconsistent with the rights of donors and governing bodies to assert control over academic institutions.
The Job of Professors Prof. Robert C. Post
88 Texas L. Rev. 185 (2009)

Professor Post reviews Stanley Fish’s book, Save the World on Your Own Time.  In this review, Professor Post discusses Fish’s suggestion that professors should only disseminate knowledge and avoid discussing substantive political matters in the classroom.  Post argues that Fish misapprehends both the purpose of higher education—to facilitate students’ intellectual development—and the role of professors in less objective academic disciplines—to study the world in order to produce action.

Notes

Reining In Maverick Traders: Rule 10b5-2 and Confidentiality Agreements Tyler J. Bexley
88 Texas L. Rev. 195 (2009)

In this Note, Bexley discusses the treatment of confidentiality agreements in insider trading cases.  After examining the limited case law on the issue, he argues that a confidentiality agreement alone is insufficient to subject a shareholder to liability for insider trading under the misappropriation theory.

The Supreme Court’s insider trading jurisprudence plainly indicates that a corporate “outsider”  (a person who is not an officer or director in the company) may be held liable for insider trading under the misappropriation theory.  However, misappropriation liability is premised on the trading of stock in violation of a duty not to trade.  More specifically, a person is only guilty of insider trading under the misappropriation theory when he misappropriates confidential information in violation of a duty to the source of the confidential information.  Bexley argues that a confidentiality agreement, without more, cannot form the basis of a duty not to trade.  Instead, he concludes that a duty not to trade can only be premised on the existence of a traditional fiduciary relationship between the shareholder and the source of confidential information.
The Internalization of Corporate Patent Infringement: Challenging the Federal Circuit’s Approach to Corporate-Participant Liability Patrick T. Schmidt
88 Texas L. Rev. 217 (2009)

In this Note, Schmidt analyzes the liability of corporate participants—owners and agents of a corporation—in a patent infringement action against a corporation.  He concludes that the Federal Circuit should adopt a more workable regime that mirrors the liability of corporate participants under traditional tort and agency principles.

Traditional agency principles are designed to balance the need to promote economic efficiency with the conflicting desire to deter tortious behavior.  The liability scheme for patent infringement, on the other hand,  is overly deferential to corporate officers and tends to misallocate liability.  Schmidt argues that the Federal Circuit should adopt certain principles from agency law in allocating liability for patent infringement in the corporate context.  This would require corporations to internalize a baseline amount of risk, which has proven socially beneficial in ordinary agency law.

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