February 26th, 2024 | Issue 3 Volume 102
Introduction The “major questions” doctrine has become a fixture of federal administrative law. It lays down the principle that an agency action of vast “economic and political significance” must be grounded in “clear congressional authorization.”[1] The Supreme Court has lately invoked this doctrine to invalidate sweeping regulatory initiatives, such as the EPA’s Clean Power Plan,[2] […]
January 17th, 2024 | Online Edition
Introduction This Essay, in honor of Robert Bone and his new book, Justifying Litigation Reform,[1] considers the impact of Bone’s thinking on the academy. It teases out three themes in Bone’s work: critical appraisal of the “day-in-court ideal,” an affirmative vision of the role of risk distribution in civil litigation, and a re-envisioning of the […]
May 17th, 2023 | Issue 6 Volume 101
Introduction In February 2020, New Mexico’s attorney general sued Google.[1] In Balderas v. Google,[2] New Mexico alleged that the company is illegally collecting children’s data in violation of the Children’s Online Privacy Protection Act (COPPA),[3] the New Mexico Unfair Practices Act (UPA),[4] and the common law privacy tort of intrusion upon seclusion, among others.[5] New […]
April 18th, 2023 | Issue 4 Volume 101
Introduction It was hard to miss cryptocurrency exchanges at Superbowl LVI. The game was played in February 2022 at SoFi Stadium, named after cryptocurrency exchange SoFi Technologies, and the broadcast of the game featured ads from cryptocurrency exchanges Coinbase, eToro, FTX, and Crypto.com.[1] Exchanges like these serve as the central marketplaces for cryptocurrency transactions, enabling […]
April 13th, 2022 | Online Edition
Toward the end of Alan Lerner and Frederick Loewe’s famous musical play, My Fair Lady, Eliza Doolittle explodes in frustration when her admirer, Freddy Eynsford-Hill, wants to read her some love poems he has written. “Words, words, words, I’m so sick of words,” she laments. “I get words all day through, first from him, now […]
March 21st, 2022 | Online Edition
Over 2,000 COVID-19 business interruption insurance cases have been filed in state and federal courts the past two years with most of the cases filed in or removed to federal courts. The cases are governed by state law. Rather than certify the novel state law issues presented in the cases to the respective state supreme […]
March 10th, 2022 | Issue 4 Volume 100
Second best theory “holds that where it is not possible to satisfy all the conditions necessary for [a] . . . system to reach an overall optimum, it is not generally desirable to satisfy as many of those conditions as possible.” Adrian Vermeule, Foreword: System Effects and the Constitution, 123 Harv. L. Rev. 4, 17 (2009). […]
February 22nd, 2022 | Online Edition
The Texas Law Review is a special place. It’s where many of us discovered our love for the law and legal inquiry. It allowed us to sate our twin desires for editing ennui and grade-school snacks. And it forged so many of our lasting friendships. For me, TLR, more than any other institution, is responsible […]
February 14th, 2022 | Issue 3 Volume 100
Judge Costa identifies the TLR articles that courts have found most useful. The authors of the most-cited articles include prominent UT Professors and Texas Supreme Court Justices. The essay uses the list to draw broader lessons about the type of scholarship judges find most useful. Criticizing law reviews is something of a judicial sport. […]
February 14th, 2022 | Issue 3 Volume 100
Professor Dzienkowski examines the articles, symposium articles, and student notes most cited by law journals during TLR‘s 100-year history. The data covers the most–cited scholarship of TLR‘s entire existence as well as by decade. This essay also briefly recounts the history of the journal and its relationship to the faculty, the alumni, and the practicing bar. TLR has played an important role in the […]
November 15th, 2021 | Online Edition
To answer the question of how my membership on law review influenced my career as a legal academic is to tell a singular story. It is singular not because it contains only one idea, but because it is not universal. I cannot offer a generalizable account of law review’s influence on others because I carry […]
October 27th, 2021 | Online Edition
Introduction The Supreme Court recently decided one of the most anticipated free exercise cases in recent decades. In Fulton v. City of Philadelphia,[1] the Court held that the City of Philadelphia could not cancel its contract with a Catholic adoption agency over the agency’s refusal to work with same-sex couples wishing to foster children.[2] Specifically, […]
October 22nd, 2021 | Online Edition
SB-8—Texas’s new abortion ban—was designed to evade constitutional review. It was drafted to preclude pre-enforcement suits brought in federal court under Ex parte Young. Yet constitutional review is coming, either in Texas’s state courts or in a new federal lawsuit brought by the United States directly against the state itself. The courts will then have […]
May 06th, 2021 | Online Edition
I. Introduction Critics have called qualified immunity an “unqualified disgrace,”[1] an “abomination,”[2] and “a scourge that closes courthouse doors to people whose constitutional rights have been violated.”[3] One particularly troubling aspect of qualified immunity is what I will call comparative qualified immunity: the ability of a government official to avoid liability by claiming that his […]
April 29th, 2021 | Issue 5
If in William Blackstone’s time we might have thought of a person’s home as their castle, in Mark Zuckerberg’s time we might say that their website is too. Under cyber-trespass laws like the Computer Fraud and Abuse Act, courts have treated online platforms as digital gatekeepers—as property owners that may permit and restrict access to […]
March 03rd, 2021 | Online Edition
Introduction After four years of a Trump Administration hostile to action on climate change, the United States is now under the leadership of the Biden Administration, which acknowledges the scope of the global climate crisis and has a number of proposals for addressing it.[1] For now, the Democratic Party also controls both houses of Congress. […]
February 23rd, 2021 | Issue 3 Volume 99
In 2019, for the first time in the history of U.S. capital markets, passive funds surpassed active funds in terms of total assets under management. The continuous growth of passive funds at the expense of active funds is a genuine cause for concern. Active funds monitor the management and partake of decision-making in their portfolio […]
December 20th, 2020 | Issue 2 Volume 99
This Essay examines the text of over two hundred public statements issued by people accused of work-related sexual harassment and misconduct as part of the #MeToo movement. Using both computational and manual text analytics approaches, the project constructs a typology of the statements’ substantive content, including admissions, denials, defenses, and apologies; their emotional content, including […]
November 19th, 2020 | Issue 1 Volume 99
Crowdsourcing, which leverages the collective expertise and resources of (mainly online) communities to achieve specified objectives, today figures prominently in a broad array of realms, including business, human rights, and medical and scientific research. It also now plays a significant role in governmental crime control efforts. Web and forensic–genetic sleuths, armchair detectives, and the like […]
September 29th, 2020 | Online Edition
Our country is in crisis. The inequality and oppression that lie deep in the roots and are woven in the branches of our lives have been laid bare by a virus. Relentless state violence against Black people has pushed protestors to the streets. We hope that the legislative and executive branches will respond with policy […]
September 28th, 2020 | Online Edition
Abstract As American society seeks to institute police reforms in the wake of the protests following George Floyd’s murder, the imperative to include communities that have been disproportionately victimized by police in those reform processes becomes increasingly apparent. For members of these communities, questions of police reform implicate not only physical violence, but violations of […]
May 02nd, 2020 | Issue 5
Nearly fifteen years ago, the Supreme Court held in Roper v. Simmons that the Eighth Amendment prohibits the execution of people who were under eighteen at the time of their offenses. The Court justified the line it drew based on legislative enactments, jury verdicts, and neuroscience. In the intervening years, however, much has changed in […]
March 23rd, 2020 | Issue 4
Introduction It is a trope at least as old as Beowulf: the unexpected second monster. Beowulf arrives in Heorot to take on Grendel, the demon who has been terrorizing the Ring-Danes’ mead-hall. He bests the monster in battle and Grendel slinks off, one-armed and bloodied, to die. The Ring-Danes honor Beowulf with a great banquet; […]
December 21st, 2019 | Issue 2
In Ex parte Levitt, the Supreme Court denied standing to a pro se litigant making esoteric claims against the appointment of Justice Hugo Black. The Court’s short opinion is now an unremarkable mainstay of modern federal courts doctrine. But the case merits closer examination. Indeed, Levitt’s challenge was probably meritorious, and Hugo Black’s appointment unconstitutional. […]
November 27th, 2019 | Issue 1
A fixed eighteen-year term for Supreme Court Justices has become a popular proposal with both academics and the general public as a possible solution to the countermajoritarian difficulty and as a means for depoliticizing the confirmation process. While scholars have extensively examined the potential benefits of term limits, the potential costs have been underexplored. We […]
April 18th, 2019 | Issue 5
Introduction In the past decade, many household-name companies have sold their shares to public investors while using dual-class voting structures to maintain management control over the company.[1] For example, technology companies, including Alibaba, Facebook, and Google (now Alphabet, Inc.), have all adopted dual-class voting structures.[2] These management-friendly voting systems have been justified as giving their […]
March 31st, 2019 | Issue 4 Online Edition Volume 97
Introduction Encryption is everywhere. Ninety-four percent of Americans aged eighteen to twenty-nine carry smartphones, many of which encrypt their data by default when not in use.[1] Laptops, tablet computers, and thumb drives can be and often are encrypted.[2] Although users can decrypt electronic devices in different ways, one popular method is to enter a password.[3] […]
March 31st, 2019 | Issue 4 Volume 97
We know quite a bit about patent litigation. Thanks to a great deal of academic research, to companies like Lex Machina, and to projects that categorize patent plaintiffs, we can tell exactly how many patent suits are filed every year, against how many defendants, who files them, how many other suits they file, where they […]
December 23rd, 2018 | Issue 2 Volume 97
Introduction Speech compulsions, the Court has often held, are as constitutionally suspect as are speech restrictions: “[T]he First Amendment guarantees ‘freedom of speech,’ a term necessarily comprising the decision of both what to say and what not to say.”[1] In the Court, the doctrine dates back to the 1943 flag salute case,[2] which held that […]
November 18th, 2018 | Issue 1 Volume 97
The efforts to get the federal government out of the business of regulating insurance have been comprehensive but not entire. The project offers two insights about deregulation and how to do it. The first insight is comparative. Given that courts, Congress, and agencies have all tried to undo the federal regulation of insurers, the higher […]
April 05th, 2018 | Issue 5 Volume 96
The myriad problems with the Dodd-Frank Act’s ban on proprietary trading by banks have led to a rare bipartisan consensus: the Volcker Rule must be pared back or even repealed. At the root of the Rule’s problems is the fundamental definitional challenge posed by the current approach. The definition of banned proprietary trading turns on […]
January 12th, 2018 | Online Edition
In this essay, Professor Tobias surveys the history of modern appointments complications and the Texas judicial vacancy crisis. Professor Tobias argues that expanding caseloads, increasing appellate and district court judgeships, and rampant partisanship have clearly undermined selection efforts across the country and Texas, which is ground zero for the “confirmation wars.”
January 12th, 2018 | Online Edition
Professor Jain responds to Professor Eagly’s recent article by situating Professor Eagly’s discussion of “immigrant protective policies” in the context of recent federal efforts to regulate “sanctuary” jurisdictions. Professor Jain argues for the need to unpack the motivations that guide law enforcement officials in responding to collateral consequences. The response also considers the implications of […]
November 15th, 2017 | Issue 7 Volume 95
I. Discord Regarding Sovereignty In the late 1990s, the international legal community’s attention began to turn to a new form of warfare, then labeled “computer network attack,” a type of information operations.[1] At the time, the Department of Defense (DoD) was at the cutting edge of thought regarding the legal significance of these operations. By […]
November 15th, 2017 | Issue 7 Volume 95
Introduction Much has been written by scholars and practitioners about how the right to self-defense and the law of countermeasures can be applied to combat different threats in cyberspace. It is therefore no surprise that Tallinn Manual 2.0 on the International Law Applicable to Cyber Operations places special emphasis on these concepts.[1] Another possible remedy […]
November 15th, 2017 | Issue 7 Volume 95
Like the paradoxical task of establishing “law” to govern “war,” the Tallinn Manual project of describing international law applicable to cyberattack is an exercise in mediating contending impulses. The law must on the one hand provide sufficient specificity and constraint to achieve its purpose—whether that is humanitarian protection or avoidance of easy resort to disproportionate, […]
November 15th, 2017 | Issue 7 Volume 95
Introduction Sovereignty is a funny thing. It is allegedly the foundation of the Westphalian order, but its exact contours are frustratingly indeterminate. When it was revealed that the Russian government interfered in the 2016 U.S. presidential election by, among other things, hacking into the e-mail system of the Democratic National Committee (DNC) and releasing its […]
November 15th, 2017 | Issue 7 Volume 95
I. Introduction In the final book of Virgil’s epic poem the Aeneid, Latinus, King of Laurentum, delivers a speech to calm his aspirant son-in-law Turnus. Turnus is enraged that his rival Aeneas, cousin to the Iliad’s Hector, will marry the King’s daughter instead. Turnus vows one-on-one combat with Aeneas to avenge the slight and to […]
November 15th, 2017 | Issue 7 Volume 95
Introduction The cybersphere offers a rich space from which to explore the development of international law in a compressed time frame. Rapidly advancing capabilities and novel events distill and sharpen longstanding debates in international law: questions involving how the law adapts to new technologies; disagreement over the extent to which secret action can move custom;[1] […]
November 15th, 2017 | Issue 7 Volume 95
The development of norms for [S]tate conduct in cyberspace does not require a reinvention of customary international law, nor does it render existing international norms obsolete. Long-standing international norms guiding [S]tate behavior—in times of peace and conflict—also apply in cyberspace.[1] Introduction The recent publication of Tallinn Manual 2.0 on the International Law Applicable to Cyber […]
November 10th, 2017 | Issue 7 Volume 95
On July 22, 2016, WikiLeaks released a collection of more than 18,000 e-mails from the formally impartial Democratic National Committee (DNC) that showed bias against the Bernie Sanders campaign and a cozy relationship between the DNC and its top officials with the Hillary Clinton campaign.[1] Apparently timed to embarrass and disrupt the DNC and the […]
May 16th, 2017 | Issue 6 Volume 95
Does torture “work?” Proponents, including President Trump and the architects of CIA “Enhanced Interrogation” say it does, by breaking terrorists’ resistance to revealing information that saves lives. Torture’s foes typically dismiss this claim as false to the point of fraud – fortuitous coincidence with torture’s unlawfulness. Neither view, I argue herein, rests firmly on evidence. […]
January 23rd, 2017 | Online Edition
In this essay, Professor David Bernstein discusses explanations for the development of the Supreme Court’s substantive due process jurisprudence. Simultaneously, Professor Bernstein complicates Professor Hawley’s account of substantive due process jurisprudence in a recent Texas Law Review article. PDF
October 25th, 2016 | Volume 94
Fishkin and Forbath introduce their approach to the topic of the Constitution and economic inequality, before outlining how the other participants in the Symposium approach their own responses to the connections between the Constitution and economic inequality.
October 25th, 2016 | Issue 7 Volume 94
Ganesh Sitaraman views the problem through the widest angle historical lens. Drawing on a book manuscript in progress, he argues that constitutional thinkers, beginning in ancient Greece and Rome, have understood that there was a necessary, important relationship between constitutional design and the distribution of wealth. He argues that the old way of managing this […]
October 25th, 2016 | Issue 7 Volume 94
Sabeel Rahman employs a wide lens of a different sort. Drawing on his own book manuscript in progress, he begins with the Progressive response to Lochner, especially the hostility of the Progressives and legal realists to the courts. He argues that from this key moment in constitutional and political history we can learn something broader […]
October 25th, 2016 | Issue 7 Volume 94
Mark Graber, by contrast, focuses our attention on a single statute: the Second Freedmen’s Bureau Bill of 1866.13 From it, however, he draws some very broad and striking lessons about the actual practice of American constitutionalism. The Second Freedmen’s Bureau Bill implemented the Thirteenth Amendment as the Reconstruction Republicans understood that Amendment. The bill provided […]
October 25th, 2016 | Issue 7 Volume 94
Frank Michelman offers a critical discussion of the sense—if any—in which Fishkin and Forbath’s argument is a constitutional argument. He carefully teases out some different senses in which such an argument makes claims about the Constitution in court. He asks whether Fishkin and Forbath are essentially opening the door to an unraveling of the New […]
October 25th, 2016 | Issue 7 Volume 94
Purdy emphasizes the “great forgetting”—the disappearance of the discourse of constitutional political economy in the wake of the great triumph of the democracy of opportunity tradition in the New Deal. Purdy’s essay imagines what it would mean to recover this tradition and restore its central place in our understanding of our constitution. He imagines both […]
October 25th, 2016 | Volume 94
Jack Balkin explores the conceptual foundations of Fishkin and Forbath’s project, and the argument for understanding the tradition they sketch as a constitutional tradition. Balkin finds that their project fits well with, and indeed exemplifies, his general theory of living originalism. His argument centers on what he calls “republicanism,” a set of related principles that […]
October 25th, 2016 | Issue 7 Volume 94
Cynthia Estlund focuses on a long-running conflict within the democracy of opportunity tradition as we understand it: the perennially fraught relationship between, on the one hand, the principle of inclusion, especially across racial lines, and on the other, a commitment to preventing oligarchy and preserving a broad, open middle class. Using conflicts over labor law […]
October 25th, 2016 | Issue 7 Volume 94
In response to several Symposium contributions, Fishkin and Forbath comment on one issue that is central to many of the pieces: In what sense, exactly, is their project about the Constitution?
October 25th, 2016 | Issue 7 Volume 94
Cory Adkins’s and David Grewal take the historical recovery of constitutional political economy in the direction of international trade, exploring the changing constitutional status of trade agreements from the Founding Era to the present. Until the mid-twentieth century, international commercial agreements were passed as treaties, by two-thirds of the Senate; afterward, such agreements were repackaged […]
October 25th, 2016 | Issue 7 Volume 94
Jeremy Kessler’s essay argues that contributions to this Symposium would benefit from revisiting the Marxist tradition’s toolkit for understanding the interplay of law and political economy. From a Marxist perspective, Kessler suggests, what was afoot in the “constitution of opportunity” tradition we chronicle may have been not so much an egalitarian critique of emerging industrial […]
October 25th, 2016 | Issue 7 Volume 94
Pope takes a leaf from the great, unorthodox Marxist thinker, W.E.B. Du Bois, whose insights into the role of race in the formation of the United States’ white working class inform Pope’s answer to the old question: “Why is there no socialism in the United States?” Pope’s answer, like Du Bois’s, Derrick Bell’s, and others […]
October 25th, 2016 | Issue 7 Volume 94
Kate Andrias’s essay begins with a puzzle: scholars have built a robust set of constitutional claims about labor rights, claims with deep roots in the labor movement’s own past struggles and its own traditions of constitutional claim-making. Yet, workers’ movements today have made no use of these claims, Andrias reports. The reason, she suggests, has […]
October 25th, 2016 | Issue 7 Volume 94
Brishen Rogers addresses what such a future architecture of labor rights might look like, taking account of the contemporary labor market conditions and new kinds of workers’ movements that Andrias describes—and taking account, as well, of the inescapable fact that the relationship among the state, unions, and individual workers is devilishly complicated “in a constitutional […]
October 25th, 2016 | Issue 7 Volume 94
Olatunde Johnson’s essay hones in on the interaction and tensions between class-based and race-based egalitarianism, two threads that any future democracy of opportunity will need to weave together. She argues that geography—place—is the key to both forms of inequality today. Opportunity is tied to place, which is why racial and income segregation each play such […]
April 04th, 2016 | Online Edition
Professor Lempert discusses the upcoming Supreme Court case on affirmative action. PDF
March 09th, 2016 | Online Edition
Professor Hirsch examines the Supreme Court’s recent decision on religious discrimination, EEOC v. Abercrombie & Fitch Stores, Inc.
March 09th, 2016 | Online Edition
In this Essay, Professor Anderson analyzes the recent Supreme Court decision Walker v. Texas Division, Sons of Confederate Veterans, Inc. and concludes that the Court’s disposition failed to address the issues presented by hybrid government–private speech.