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Is Mass Incarceration History?

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Simon reviews Elizabeth Hinton’s book, From the War on Poverty to the War on Crime: The Making of Mass Incarceration in America, a study of federal crime policy from the Kennedy through Reagan Administrations that Simon dubs “the most telling example yet of this new history of the American carceral state.” Hinton draws on confidential memos and other materials from the National Archives and presidential libraries to “draw a far more precise picture than ever before of what national leaders believed they knew about crime and how they intended to act.” Simon finds that her account “confirms the centrality of political considerations to the shaping of mass incarceration urged by earlier studies, while giving us a much more detailed and pointed analysis of what those political considerations were.” The Book Review proceeds by examining the book’s major findings, before turning to Hinton’s historiographical contributions and her lessons to those who advocate for ending mass incarceration.

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Criminal Convictions, and Those Who Are Still Left Behind

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Crowell’s Note attempts to identify the problems created by discriminatory housing bars based on criminal convictions, the various reform efforts currently at work, and the potential inadequacies of the reforms based on the needs of those most at risk for recidivism. To that end, the Note begins by discussing the prevalence of housing discrimination in both the private and public housing sectors, before pulling from social science to demonstrate the effects of unstable housing or homelessness on individuals just released from jail or prison. The Note then outlinesthe various reform strategies that advocates are using to challenge these bars and discusses both the positive effects of these reforms and their failure to assist those most in need of relief, before finally attempting to identify potential solutions to bridge the gap between the limits of the ongoing reform efforts and the need to provide housing for individuals who have just been released back into society.

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Damage Averaging—How the System Harms High-Value Claims

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The disappearance of the American civil trial has paved the way for a new order of dispute resolution—one marked by alternatives such as arbitration, mediation, and, above all, settlement. Nowhere has that shift been seen more than in tort cases, where today less than 1% of all mass tort cases proceed to trial. As a consequence of the vast majority of mass tort cases being settled by agreement between the parties, allocation of the settlement proceeds has become a massive undertaking. When one or a small number of claimants settle with a defendant, it is relatively easy to determine how the proceeds of the settlement are to be split; it is far more difficult when a defendant establishes, for example, a $4.85 billion settlement fund for almost 50,000 claimants, as Merck & Co. did to settle nationwide multi-district litigation (MDL) over the drug Vioxx. As can be imagined, those claimants took Vioxx for various periods of time; had drastically diverse medical histories, employment opportunities, and family situations; and exhibited numerous other differences. To account for such factors, the individual settlement awards were based on the calculation of “points” pursuant to formulas, grids, and matrices. Such an allocation method, known as “damage averaging,” provides an efficient, objective, and equitable (both horizontally and vertically) system for apportioning settlement proceeds among claimants; however, it may inadequately compensate those claims which our legal system should value most—the high-value claims of the most seriously injured claimants.

In this Note, Kishinevsky further defines and explains damage averaging as well as investigates why high-value claims are likely undervalued under such a system, while, conversely, low-value claims are typically overvalued. He then explains why damage averaging use has greatly expanded in mass tort settlements and examine the benefits and negatives of a damage averaging allocation method, before discussing alternatives to damage averaging and presenting an argument for why damage averaging is the best current arrangement for the distribution of settlement proceeds. Finally, he recommends solutions to ensure that high-value claims are accurately valued—proposals that have the potential to reduce (or even eliminate) undervaluation of such claims and meaningfully improve the outcomes of damage-averaging apportionment.

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Armed and Not Dangerous? A Mistaken Treatment of Firearms in Terry Analyses

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Beginning with the Supreme Court’s decision in District of Columbia v. Heller in 2008, federal constitutional law has expanded to recognize constitutional protections for the individual possession of firearms. These new protections have profoundly affected Fourth Amendment law as well, as seen in the two-pronged analysis for conducting an investigatory stop pursuant to Terry v. Ohio. Particularly, police officers’ ability to use the first Terry prong to stop a person on suspicion of carrying an illegal firearm has been greatly weakened, and their ability to protect themselves from armed, suspected criminals using the second Terry prong has also been weakened, as the “blanket assumption” that those who carried firearms were dangerous has begun to crumble.

This Note analyzes the soundness of this trend towards treating “armed and dangerous” as two separate requirements in a Terry analysis. Wilkins’s main thesis is simple—that this trend is a horrible mistake. He argues that treating “armed and dangerous” as two separate requirements misinterprets the Supreme Court’s treatment of firearms and the “armed and dangerous” standard in Terry and other contexts, mistakenly uses state criminal law as a measure for dangerousness, and ignores the simple fact that guns are dangerous instruments used to kill people, including police officers.

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Federalism and State Democracy

By | TLR Vol. 95-4 | No Comments

Schleicher’s Article addresses the consequences of second-order elections—voting occuring in state and local elections that merely reflects voter preferences about the President and Congress with little or no variation based on the performance or promises of state officeholders and candidates—for federalism doctrine, policy making, and theory. First, it argues that virtually all of the ends of federalism—responsiveness, respect for diversity, laboratories of democracy, variation to permit foot voting, and so forth—are premised not only on state governments having authority but also on the success of state democracy at reflecting local needs and wants. Second, it shows that proponents of greater federalism focus largely on questions of state authority rather than the quality of state democracy, leading to proposals and doctrines that frustrate federalism’s normative goals. Third, the Article sketches several new paths for proponents of federalism that aim at reform of state government and state elections rather than changes to federal policy. Lastly, the Article shows that research on second-order elections reveals the emptiness of several prominent theories about federalism, particularly work about the “political safeguards of federalism.”

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Kent Greenawalt, Defender of the Faith

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Koppelman reviews Kent Greenawalt’s book, Exemptions: Necessary, Justified, or Misguided?, which aims “to explore the complexity of many concerns about [religious] exemptions and implicitly encourage those on opposite sides of particular controversies to recognize, and perhaps even acknowledge, that competing considerations do carry some weight.” Koppelman calls the book “deliberately unhelpful with respect to broader questions that weigh on the minds of many,” namely, “[w]hy is it fair, as a general matter, to single out religion for special treatment,” and “what general principles should or courts follow if they are going to devise exemptions on an ad hoc basis?” As a result, he calls the book “an important but incomplete defense of exemptions,” and his review thus offers “an account of the missing principles inferred from what Greenawalt does say.” Koppelman starts by examining Greenawalt’s specific arguments for exemptions, before taking up the question of whether it is fair to give religion special treatment, and concludes by considering the problem of how to determine substantial burdens on religion.

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A Civics Lesson

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Koski reviews Catherine J. Ross’s book, Lessons in Censorship: How Schools and Courts Subvert Students’ First Amendment Rights, which argues that “ignorance about, indifference to, and disdain for the speech rights of students permeates society” and leads to “rampant constitutional violations that plague our schools.” Koski says the book is not only “a comprehensive and colorfully written treatment of the Court’s student speech jurisprudence, but it also reminds us that we must remain vigilant in our protection of free speech in the classroom and the courtroom.” He begins by summarizing the book and focusing on its contributions to First Amendment analysis, before probing Ross’s argument that “protection of all pure student speech, even that which is hurtful, insubordinate, and offensive, is essential to the school’s duty of modeling and transmitting the values of citizenship.” Koski generally assents to Ross’s arguments, but concludes in favor of adding “schoolwide practices aimed at creating a culture of positive behavior, tolerance, and respect through [schoolwide positive behavior intervention and supports, restorative practices], and social emotional learning.”

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Courts Have Gone off the Map: The Geographic Scope of the Citizenship Clause

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In all of the debates surrounding birthright citizenship, it appears that a small, yet critical, piece of the Citizenship Clause has been overlooked. The Clause reads that “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” Yet, few courts have paused to consider what the phrase “in the United States” means. This Note argues that, from an Originalist, historical perspective, all of the recent federal appellate cases interpreting the phrase “in the United States” for purposes of the Fourteenth Amendment have been incorrectly decided, and that if one wishes to stay true to the framer’s intent, the correct interpretation of that phrase is “in the dominion of the United States.” In other words, the framers of the Fourteenth Amendment would have considered anywhere that the United States exercises sovereignty “in the United States,” not just the fifty states and the District of Columbia.

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The Limits of International Organization Immunity: An Argument for a Restrictive Theory of Immunity Under the IOIA

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This Note examines the current circuit split in the level of immunity afforded to international organizations under the International Organizations Immunities Act of 1945 (IOIA). Under the IOIA, designated international organizations may receive “the same immunity from suit and every form of judicial process as is enjoyed by foreign governments.” However, the Third Circuit and D.C. Circuit disagree on whether the IOIA intended to incorporate subsequent changes in the law of foreign sovereign immunity. Accordingly, international organizations may be entitled to either the “virtually absolute immunity” afforded to foreign states in 1945 or the restrictive immunity afforded to foreign states today. This Note argues that the IOIA, properly read, does not provide international organizations with absolute immunity. Moreover, applying a theory of restrictive immunity under the IOIA would benefit international organizations through lower transaction costs, increased organizational accountability, and improved public perception. Finally, the Note provides a comparative analysis of the various approaches taken by Austria, Italy, and the United Kingdom regarding international organization immunity.

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News

Volume 96 Editorial Board

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The Texas Law Review is proud and excited to announce the Editorial Board for Volume 96. The members of Volume 95 are happy to pass the torch to such a fantastic group of people. View the Volume 96 Editorial board Masthead.

TLR Presents: Tallinn Manual 2.0

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The Texas Law Review, the Robert S. Strauss Center for International Security and Law at the University of Texas at Austin, and the Lieber Institute for Law & Land Warfare at the United States Military Academy are hosting a symposium on the soon-to-be-released Tallinn Manual 2.0. Visit www.tallinnmanualsymposium.com for more information and registration.

Congratulations Volume 95 New Members!

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The Texas Law Review is proud to announce its volume 95 membership!  Congratulations to all our new members, and welcome to TLR! The Masthead is now available for download.

Congratulations Volume 94 New Members!

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The Texas Law Review is proud to announce its volume 94 membership!  Congratulations to all our new members, and welcome to TLR! The Masthead is now available for download.