Volume 88, Issue 3

Articles

Fiduciary Administration: Rethinking Popular Representation in Agency Rulemaking Prof. Evan J. Criddle
88 Texas L. Rev. 441 (2010)

Over the last several decades, some scholars have argued that rulemaking by unelected agency officials imperils popular sovereignty.  The conventional wisdom is that federal law should resolve this problem by allowing the President to serve as a proxy for the “will of the people” in administrative rulemaking.  However, Professor Criddle suggests that a better solution for promoting popular representation in agency rulemaking is to extend private fiduciary duties to administrative agencies.

Professor Criddle begins by accepting the premise that federal agency rulemaking often diverges from the will of the electorate.  However, he rejects the notion that this inconsistency can be eliminated by equating the President’s preferences on questions of regulatory policy with the will of the people.  Empirical evidence has shown that presidents do not necessarily pursue administrative policies that are consistent with the views of the electorate.  Indeed, the notion that presidents might serve as reliable proxies for majoritarian preferences in agency rulemaking becomes indefensible once one acknowledges how little the public knows about agency rulemaking.

As an alternative to the presidential proxy argument, Professor Criddle proposes the adoption of a fiduciary model of popular representation.  Like fiduciaries in private law, all federal officers exercise discretionary administrative authority for the benefit of those subject to their power, and all are bound by duties of purposefulness, fairness, integrity, solicitude, reasonableness, and transparency.  Rather than focus on a representative’s obedience to the public will, fiduciary representation emphasizes agencies’ responsibilities to act deliberatively and reasonably in promoting the public welfare.

Responses in See Also:

Presidential Control Is Better Than the Alternatives
 
 Prof. Richard J. Pierce

In this Response, Professor Richard J. Pierce, Jr. states that he is a proponent the presidential-control model, and that he disagrees with Criddle on various points.  First, Pierce suggests that Criddle inappropriately emphasizes the role of the judiciary in agency policy making.  Second, Pierce argues that Criddle's proposal of increasing the scope of notice-and-comment rulemaking and hard-look judicial review would exacerbate and already ossified and expensive system.  Finally, Pierce criticizes Criddle's insistence on transparency in some areas in government that ought to remain veiled.

The Challenges of Fiduciary Administration
 
 Prof. Glen Staszewski

In his Response to Professor Criddle's proposal of a fiduciary model of popular representation in administrative regulation, Professor Staszewski generally agrees with Criddle's skepticism of the presidential-control model but identifies four challenges that scholars must overcome when developing alternative theories to the presidential-control model of administrative regulation.  First, he argues that scholars should account for the importance of elections.  Second, they should account for the proper role of political preferences.  Third, they must develop oversight mechanisms apart from judicial review that are not prohibitively expensive.  Finally, they should seek to reduce the fear of uncertainty accompanying the abandonment of the presidential-control model.
Principles for Patent Remedies Prof. John M. Golden
88 Texas L. Rev. 505 (2010)

In this Article, Professor Golden examines the debate about what the value of patent remedies generally is or should be.  This public debate has become relatively heated in light of recent Supreme Court jurisprudence that may decrease the availability of injunctions forbidding continued infringement.  Professor Golden concludes that policy making in this area should take guidance from specific principles of adaptation and implementation.

The 2006 decision of the U.S. Supreme Court in eBay Inc. v. MercExchange, L.L.C. has spawned conflicting answers from lower courts and academic commentators regarding how to decide when injunctions should issue.  At the same time, Capitol Hill entities representing a variety of industry heavyweights have poured millions into lobbying for or against patent reform bills.  Amidst all the resulting commotion, one fact seems clear.  We really have little specific sense of what the value of remedies for patent infringement generally is or should be.  Indeed, with a patentee’s ability to invoke the leverage of an injunction cast into doubt by the eBay case, the hunt for a satisfactory remedial system is likely to be a long one.

How then should we determine patent remedies’ proper nature and scope?  Professor Golden argues that policy making should take guidance from three principles of adaptation and two principles of implementation: (1) nonabsolutism in the formulation and application of legal doctrine; (2) antidiscrimination with respect to business models; (3) learning, an interest in fostering the production of useful information; (4) administrability; and (5) devolution of significant decisional responsibility to private or government actors nearest to the facts of an individual case.  Although these principles do not uniquely determine any single best system of patent remedies, they provide a framework for assessing the relative merits of policy proposals and for suggesting ways in which proposals can be improved.  In particular, the principles have implications for current debates regarding the availability of permanent injunctions, the calculation of reasonable-royalty damages, and the possibility of remedial exemptions for prior users or independent creators.

Responses in See Also:

Notice and Patent Remedies
 
 Prof. Herbert Hovenkamp

Prof. Hovenkamp evaluates Prof. Golden’s proposals in Principles for Patent Remedies, arguing for the addition of an additional principle: notice. The author writes, “remedies must be administered so as to encourage optimal and timely private disclosure as well as optimal, cost-justified private search.”

Patent Valuation Theory and the Economics of Improvement
 
 Prof. Amy L. Landers

In her response to Professor Golden, Professor Landers identifies three threads that underlie the debate on patent remedies.  First, patent value may be difficult to define because of certain indeterminacies.  Second, economic and technological contingencies may distort the amounts paid for patents.  Third, principles of adaptation and implementation might bring the field to a theoretical consensus about patent value.  After analyzing Prof. Golden’s principles in the context of each thread, Prof.

Patent Remedies and Practical Reason
 
 Prof. Thomas F. Cotter

In this Response, Professor Thomas Cotter compares his concept of “practical reason,” which emphasizes the need for choice, deliberation, and communication in the face of radical uncertainty and conflicting norms, with Golden’s five principles for patent remedies.  Cotter argues that the application of Golden’s principles would be grounded in a form of practical reason; both methodologies take a nondogmatic approach to making rational judgments under conditions of uncertainty.  But Cotter also offers two critiques of Golden: first, Golden sometimes seems to betray a Platonic longing for something more determinate than practical reason; and second, Cotter disagrees with Golden’s analysis on specific issues within the field of patent remedies.

Book Reviews

Can the Courts Rescue Us from the Patent Crisis? Prof. Scott Baker
88 Texas L. Rev. 593 (2010)

Professor Baker reviews The Patent Crisis and How the Courts Can Solve It, by Dan Burke and Mark Lemley.

Professor Baker examines Burke and Lemley’s proposal that the courts, and not Congress, are best suited to resolve the patent crisis by adopting a more sensible approach to innovation policy.  To implement this proposal in an industry-specific manner (as the authors suggest), the Federal Circuit must identify the problems of a given industry and then come up with a doctrine to solve the identified problems.  Professor Baker discusses the potential pitfalls of this proposal and examines the likely effects on patent law if the proposal is ultimately implemented.

Notes

Rollover, Rollover: A Behavioral Law and Economics Analysis of the Payday-Loan Industry Karen E. Francis
88 Texas L. Rev. 611 (2010)

In this Note, Francis examines the payday-loan industry and the existing and proposed regulations that control it. Looking through the lens of behavioral law and economics, she illustrates how some borrowers systematically underestimate their future borrowing, leading to unexpected rollover loans and imposing substantial and unnecessary costs on these borrowers. The Note also demonstrates how lenders are able to exploit these borrowers’ underestimation biases to aggravate the costs incurred in the "debt trap."

The Note begins by drawing on empirical research to offer a snapshot of the industry and the "typical" borrower of payday loans. Next, Francis sets the regulatory stage of the payday-loan industry, paying specific attention to the proposed framework under House Bill 1214. She then lays out the BLE theory with respect to payday lending, specifically showing how the underestimation bias may explain the frequency of payday-loan rollovers. Lastly, she presents a debiasing solution to increase the effectiveness of the disclosures proposed under House Bill 1214.
Don’t Mess with Houston, Texas: The Clean Air Act and State/Local Preemption Ryan Hackney
88 Texas L. Rev. 639 (2010)

In this Note, Hackney discusses the legal issues surrounding state/local preemption.  He examines this broad area of law by looking at what steps a city may take to ensure that its citizens breath clean air if the city determines that the state is not doing enough to regulate air pollution.

Noting that local government is often the only entity that can effectively solve this type of problem, Hackney addresses the question of how far a city can go in addressing the issue given that state law expressly governs.

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