See Also

The online companion to the Texas Law Review

Against Gay Potemkin Villages: Title VII and Sexual Orientation Discrimination

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Professor Kreis examines a recent ruling from the Eleventh Circuit Court of Appeals that Title VII does not prohibit sexual orientation employment discrimination. He argues against the position taken by one member of the panel that, for Title VII’s purposes, sexual orientation as a status is severable from individuals’ same-sex attractions. The piece examines why this status-conduct dichotomy theory is both inconsistent with Supreme Court gay rights precedents and Title VII’s protections against racial and religious discrimination. Please note that this draft version is subject to change.

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Volume 96

Against Gay Potemkin Villages: Title VII and Sexual Orientation Discrimination

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Professor Kreis examines a recent ruling from the Eleventh Circuit Court of Appeals that Title VII does not prohibit sexual orientation employment discrimination. He argues against the position taken by one member of the panel that, for Title VII’s purposes, sexual orientation as a status is severable from individuals’ same-sex attractions. The piece examines why this status-conduct dichotomy theory is both inconsistent with Supreme Court gay rights precedents and Title VII’s protections against racial and religious discrimination. Please note that this draft version is subject to change.

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Volume 95

Rethinking the Choice of “Private Choice” in Conceptualizing Abortion: A Response to Erwin Chemerinsky and Michele Goodwin’s Abortion: A Woman’s Private Choice

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Professors Rimalt and Yefet respond to Dean Chemerinsky and Professor Goodwin’s recent article by arguing for a supplementary equality framing that defines the scope and substance of the right to abortion on the basis of equal treatment standards and measures the female right against other comparable male rights.

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Young Adults Are Different, Too: Why and How We Can Create a Better Justice System for Young People Age 18 to 25

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In this note, Stamm argues for folding young adults into the juvenile justice system by reviewing the various ways in which many states have already taken the lessons of the juvenile system—lots of treatment and programming, age-limited facilities, shorter sentences, and sealed records—and applied them to the developmentally similar young adult population.

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Volume 94

No Room for the Poor—The Blight of Eminent Domain on America’s Lowest Economic Classes

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“Blight” is the label used by U.S. law to describe property that is considered to be dilapidated or injurious to public health. In much of the U.S., it is easier to use eminent domain to condemn a property if it is deemed “blighted.” This Note examines the negative effects that condemning such properties can have on residents of “blighted” areas and proposes some changes to the law that would better protect these residents from the costs associated with condemnation.

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Blackhorse Down: Do NFL Teams Need Trademark Protection?

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In this Note, William Mason analyzes the economic effects of the Trademark Trial and Appeal Board’s decision to revoke federal trademark protection from the Washington Redskins and questions whether those effects are sufficient to force a change to the team’s name.  He argues that the protections and incentives provided by the NFL and collective bargaining will significantly damper any economic effect the Board’s decision may have, and instead suggests alternative areas where social and economic pressure may prove more successful.

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Volume 93

Fine Tuning Nutrition Disclosures: A Behavioral Law and Economics Critique of the Menu-Labeling Provision of the Affordable Care Act

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Obesity is one of the biggest health problems currently facing the United States. In order to combat this growing epidemic, a provision was added into the Affordable Care Act that would require restaurants to provide calorie and other health information to consumers. In this Note, Ms. Bailey analyzes this new provision against the back drop of behavioral law and economics (BLE). She then discusses possible improvements to the new federal menu-labeling law based on BLE concepts. She finally examines other possible policy solutions to the obesity epidemic. Read More

Volume 92

Volume 91

Volume 90

Regulating the Science of Forensic Evidence: A Broken System Requires a New Federal Agency

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Professor Gabel and Ms. Champion agree with Mr. Goldstein’s argument that serious validity and reliability problems plague forensic science, but, using the recent Troy Davis case in Georgia as an illustration, they argue for federal rather than state oversight. Gabel and Champion assert that many states lack the funding to construct an adequate system and that the fragmentation caused by different state systems would be a significant impediment to reform. They suggest a federal agency that, like the Environmental Protection Agency, would set minimum standards but allow states to experiment with enhanced regulation. Read More

Forensic Science Reform

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Professor Giannelli agrees with Mr. Goldstein’s argument that crime laboratories would be better regulated by the states rather than federal government. He uses the recent controversies surrounding the Cameron Todd Willingham investigation in Texas and an investigation following a postconviction finding of innocence in North Carolina.

However, Giannelli argues that states are ill-equipped to tackle one major problem in forensic science: the lack of foundational research. Giannelli points out that many forensic science disciplines have scant research to validate their techniques and contends that states do not have the resources or capability to conduct the necessary research. Read More

The Dual Message of Moral Rights

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Professor Zemer responds to Ms. Mills’s critique of moral rights, including the right of integrity, by arguing that protection of the right of integrity strengthens authorship morality. He observes that the “bundle of sticks” conception of property is not absolute and allows for the division of rights to a particular piece of property. Similarly, copyright law allows for division such that certain rights, including the right of integrity, can be protected. Finally, Professor Zemer argues that there is intrinsic value for artists in the artistic enterprise that is unaddressed by Ms. Mills’s critique of moral rights. The value also extends to the public through the protection of art and its creative message. Read More

Conceptual Clarity and Necessary Muddles

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Professor Michael D. Green and President William C. Powers, Jr., the Co-Reporters of Restatement (Third) of Torts, describe the development of indivisible injury jurisprudence and its evolution in the Restatements. Professor Green and President Powers address Mr. Raupp’s arguments regarding the narrowing of the doctrine, but their analysis leads to a different conclusion, namely that “Apportionment in the face of evidential uncertainty is conceptually messy and does not nourish our appetite for logical ordering. Yet our judgment is that the alternative is worse, so the law should make this accommodation, appreciating the trade-offs involved.” Read More

Two Cheers for Procedural Review of Guidance Documents

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Professor Franklin responds to Professor Seidenfeld’s argument in favor of substantive review of guidance documents by raising questions as to whether substantive review is a workable alternative. Professor Franklin argues that a concern with consistency does not justify giving up the enterprise of procedural review, arguing that Professor Seidentfeld’s argument about the irrelevance of procedural invalidation of guidance documents is overstated. Next, Professor Franklin acknowledges that he does not object to the proposal to loosen the doctrines of finality and ripeness but questions the effectiveness of the review process. It is unclear to Professor Franklin how a court would determine which objections and alternatives must be addressed lest the guidance be declared substantively invalid. As such, Professor Franklin views Professor Seidenfeld’s treatment of the interaction between substantive review and notice and comment as understated.

Professor Franklin concludes, “Preenforcement invalidation of guidance documents for failure to undergo notice and comment is, and should be, the exception rather than the rule.” Due to the risk of agencies using guidance documents to change law without input from the public, “a persuasive case for abandoning procedural review has yet to be made.” Read More

Paving the Path to Accurately Predicting Legal Outcomes: A Comment on Professor Chien‘s Predicting Patent Litigation

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Professor Colleen Chien recently developed an innovative and important model that relies on a patent’s “after-acquired” characteristics to predict the chances that the patent will be involved in litigation. This comment critiques Professor Chien’s model by identifying certain weaknesses, including that its dataset is limited to 1990 patents and its sample size may be too small to be sufficiently representative, as well as a number of endogeneity concerns. Additionally, we seek a more precise definition of data regarding the patent owner, further categorization of reexamination data, and research into the timing of transfer. Finally, we question her policy recommendations given these weaknesses and propose areas of further inquiry. Read More

On Predicting Patent Litigation

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Professor Petherbridge focuses on the claim that a model, identified in Professor Chien’s article, can be used to predict whether a patent is likely to be asserted against an innovation. Using assumptions generous to the model, Professor Petherbridge generates a test that improves the probability of accurately assessing whether a patent will be litigated. He also identifies a number of practical problems with Professor Chien’s model, including that the model captures false positives that render implementation of the model burdensome. Professor Petherbridge next asks whether there is a “lurking variable” that can better explain the model’s results and whether the data generated by the model is practically useful. While Professor Petherbridge identifies these misgivings with Professor Chien’s article, he notes that the article has identified certain acquired characteristics that may make predicting patent litigation an easier task. Read More

Cybersecurity: Toward a Meaningful Policy Framework

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Professor Shane responds to the framework for cybersecurity protections developed in Mr. Thompson’s note. For reasons of practicality and comprehensiveness, Professor Shane argues that this framework is insufficient, and he identifies current issues that suggest larger problems that confront the cybersecurity enterprise. Professor Shane notes that the current cybersecurity climate is more serious than suggested by Mr. Thompson, with criminal enterprises becoming increasingly sophisticated and damaging to networks. This climate is also characterized by an absence of effective policy caused by overlapping bureaucracies, conflict between the military and private sectors, private control of networks, and a lack of governmental understanding of the problem.

Professor Shane concludes by identifying his proposal for a national commission to consider public needs and technical expertise in formulating an approach to cybersecurity. Read More

Of Geese, Ribbons, and Creative Destruction: Moral Rights and Its Consequences

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Professor Bird responds to Ms. Lindsey Mills’s Note, Moral Rights: Well-Intentioned Protection and its Unintended Consequences, applauding her reasoned criticisms of moral rights, particularly the right of integrity, but noting some misgivings based on her discussions of a Canadian moral rights case and artistic destruction. Professor Bird concludes with an appeal to pragmatism in light of “artistic doomsday rhetoric” against moral rights protections in American law. Read More

Non-originalist Originalists: The Nineteenth Amendment and the Fourteenth Amendment‘s Anticaste Principle

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Professor Brophy responds to the ongoing dialogue concerning Professor Calabresi and Ms. Rickert’s article with his reactions to their originalist argument that the Fourteenth Amendment prohibits sex discrimination as a matter of original public meaning. He observes a tension between original meaning and original intent and argues that original public meaning may differ from the Framers’ “original expected applications.” Professor Brophy continues by asking a series of questions to ascertain how the Framers identified, how original meaning is established, and whose meaning governs. Professor Brophy then observes how the Reconstruction-era amendments were construed broadly at the time and how by the Civil War, Americans had viewed the Constitution as a set of broad principles rather than a “mere set of words.” Brophy concludes by suggesting potential applications of the Calabresi and Rickert argument. Read More

A Response to a Pretend Solution

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In this Response, Chapter 13 Trustee Henry Hildebrand addresses whether the results of Professor Katherine Porter’s study warrant the conclusion that Chapter 13 is merely a pretend solution. According to Hildebrand, the fact that debtors who failed to complete their Chapter 13 plans did not achieve the goals that they sought to accomplish when they filed for Chapter 13 is not evidence of the systemic failure of either Chapter 13 or the consumer bankruptcy system. Hildebrand argues that Porter’s study is too myopic, focusing only on the experiences of “failed” Chapter 13 debtors while ignoring the positive results that Chapter 13 has achieved for debtors who were able to complete their plans. He also posits alternative explanations for Porter’s results, including the tendency of overconfident debtors to draft unrealistic repayment plans and the failure of Chapter 13 debtors to seeks post-confirmation judicial modification of their plans. Although he acknowledges that Porter raises valid points about the complexity of the Chapter 13 system and participants’ unrealistic expectations of future financial stability, he argues that these issues apply equally to Chapter 7 debtors and concludes that, absent more probative evidence of systemic failure, they are better solved by providing debtors with increased judicial oversight and legal assistance than by conversion to a single-chapter bankruptcy system. Read More

Small Ball

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Professor William Whitford responds to Professor Porter’s article by concurring with Porter’s conclusion that the current consumer bankruptcy system should be converted into a single-chapter system in order to eliminate the complexity and choice that currently prevents filers from reaching discharge. Concerned, however, that legislative roadblocks might substantially delay the wholesale reform of the bankruptcy system, and conscious of the importance of making bankruptcy discharge more readily available, Whitford proposes a “small ball” solution that can begin mitigating Chapter 13’s potential for harm without the need to wait for an act of Congress. Citing evidence of geographic trends in Chapter 13 filing practices, in terms of both the percentage of consumer bankruptcy cases that are Chapter 13 cases as well as the nature of the Chapter 13 plans that are confirmed, Whitford argues that debtors’ bankruptcy decisions are largely influenced by the legal culture that exists in the judicial district in which they file their cases. Because the incentives created by this legal culture cause attorneys, judges, and bankruptcy trustees to steer debtors into certain bankruptcy plans regardless of needs and preferences of individual debtors, Whitford asserts that local legal culture is a contributing cause of many debtors’ inability to navigate the bankruptcy system to discharge. He concludes by outlining how local legal influences can be identified and eliminated, thereby ensuring that debtors will be steered to Chapter 13 and into certain payout plans only under appropriate circumstances—where the chosen path is that most likely to enable the debtor to obtain discharge. Read More

Volume 89

Resourceful Relators: The Rise of Qui Tam Suits Under the False Claims Act Based on Information Obtained in Civil Litigation

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Mr. Stewart responds to the 2010 amendments to the False Claims Act (FCA) and identifies how these amendments equip potential relators “with the tools necessary to bring qui tam suits.” In doing so, Stewart examines how perceived hurdles, including the heightened pleading standard of Rule 9(b) of the Federal Rules of Civil Procedure and the public disclosure bar, among other things, to qui tam suits are overstated. Nonetheless, some hurdles remain, including those that defeat actions in which a relator does not uncover conduct apart from that which is detailed in the public domain. Stewart concludes, “the overall effect of the recent amendments is what the drafters of the FCA have striven for over decades. A new group of relators is now equipped to aid the Government in its pursuit of possible fraud with adequate hope of success and incentive to bring suit.” Read More

Agency Hygiene

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Prof. Bagley notes that reshaping captured agencies using the structural reforms suggested by Prof. Barkow may be politically infeasible and offers an alternative solution for eliminating interest-group capture. First, he suggests establishing a body within the Executive Branch that proactively investigates and documents capture dynamics. Second, he suggests creating legislative mechanisms that will encourage Congressional action on the body’s recommendations, and perhaps, more provocatively, requiring the Executive Branch to enact any such recommendations in the absence of Congress’s formal objection. Read More

“Two Paths, One Result”: A (Heavily Qualified) Defense of Consensus Constitutionalism

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Professor Tushnet responds to Professor Driver’s skepticism toward consensus constitutionalism, or the view that the Supreme Court “inscribes into constitutional law the views of an undifferentiated American people.” Tushnet argues that consensus constitutionalism is more defensible than Professor Driver’s argument allows, based on a “more generous” reading of their texts.

Tushnet reads the consensus constitutionalists as arguing that the Court’s decisions reflect a consensus and, to the extent there is a divergence from the consensus, the decisions are likely to be overlooked or ignored. Driver, however, argues that no consensus has ever existed.

In response, Tushnet sketches the “same results claim,” by which the results of debates concerning constitutional values will be the same regardless of whether (1) the judiciary or (2) the Legislative and Executive Branches, produce the result. Tushnet qualifies this claim and notes its limitations, thereby offering a research agenda for consensus constitutionalists.

Tushnet also responds to Driver’s view that consensus constitutionalism saps the normativity from constitutional debate, arguing that normativity remains possible particularly in light of recent debates. He notes that observations about today may be right or wrong but are subject to political change, with the result that any normative analysis is dangerous. As a result, Tushnet argues that consensus constitutionalists can offer only limited normative guidance to resolve contemporary issues. In any event, political leaders and judges are not required to find or occupy this normative field before making a decision.

Tushnet concludes by noting Driver’s limited reading of consensus constitutionalism and agreeing with Driver’s criticism of the overstatement of consensus in constitutional debates and Driver’s argument that any consensus does not foreclose normative arguments in court. Read More

The Still-Elusive Quest to Make Sense of Veil-Piercing

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Prof. Millon argues that while Prof. Oh’s empirical study offers a valuable contribution to veil-piercing scholarship by analyzing cases of fraud as a distinct category, it falls short of explaining what is really going on in veil-piercing cases. Because decision making in this area is driven by imperfectly understood and poorly articulated considerations of fairness and policy, an analysis of the factors cited by courts to justify veil-piercing will not adequately explain the outcomes of these cases. Millon also challenges the common assumption that piercing is easier to justify in tort as opposed to contract cases by suggesting justifications for the relative frequency of piercing in contract cases. Read More

Give ‘Em Enough Rope: Optimal Design of Executive Pay and Rent Extraction

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Due to recent debates concerning executive compensation, incentive structures are increasingly scrutinized. Professor Sepe reponds to Professor Fried’s argument by (i) challenging the notion that efficiency necessarily results from preventing managers from capturing extra returns, as managers may use these returns effectively, and (ii) arguing that the social costs of overpriced equity offerings are unclear. Indeed, Sepe concludes that payment of extra returns to managers may be “necessary to preserve incentives not to waste corporate assets.” Read More

The Continuing Relevance of the Establishment Clause: A Reply to Professor Richard C. Schragger

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Professor Richard C. Schragger has identified current underenforcement of the Establishment Clause. However, he may not have identified the right reasons for this underenforcement, Professor Corbin argues. Rather, state actions with persuasive secular justifications may not implicate the Establishment Clause to the extent that Professor Schragger believes. Moreover, apparently problematic statements of government officials may be protected as private speech. Finally, fear of backlash against minorities may animate underenforcement.

Furthermore, Professor Corbin is unconvinced that decentralization is the answer given the benefits of disestablishment, costs of abandoning disestablishment norms, Professor Schragger’s privileging of conflict avoidance over other Establishment Clause norms, and the potential for backlash against religious minorities.

Professor Corbin argues that these observations may lead to different conclusions than those of Professor Schragger. Read More

The Law Professor as Counterterrorist Tactician

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Scholars have long sought to identify an optimal counterterrorist strategy, particularly in light of the September 11 attacks. Professor Rosenthal responds to Professor Huq’s critique of the use of religious speech and statements of belief for counterterrorist purposes. In doing so, Rosenthal argues that such statements may offer appropriate and reliable evidence of motive and intent, as in the case of Sheikh Omar Abdul-Rahman, in investigations and prosecutions of terrorists.

Rosenthal identifies the costs associated with forgoing such an investigation of religious speech, and Professor Huq’s argument is not to the contrary. Rosenthal argues that investigators and prosecutors must be able to rely on these statements just as they are used to initiate an investigation, and the costs of forgoing this reliance could be catastrophic. Indeed, Huq’s proposal to identify insular groups may require reliance on statements of belief given the lack of information available otherwise.

Rosenthal concludes that the lack of implementation of Professor Huq’s proposals by accountable policy makers may suggest their limited value. Read More

Agency-Specific Precedents: Rational Ignorance or Deliberate Strategy

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Administrative law scholars have debated the seeming paradox of a field with general legal principles applied to a diverse group of agencies. Professor Hickman responds to Professors Levy and Glicksman’s observation that judges tend to identify precedents from separate agencies, although this is problematic. These precedents, according to Levy and Glicksman, arise from attorney specialization, an inability of attorneys to expand their knowledge to other areas, and an inability of judges to compensate for incomplete briefing.

While recognizing the validity of Professors Levy and Glicksman’s observation, Professor Hickman observes that this picture is incomplete and that the underlying causes of deviations from general principles are likely myriad. In particular, she argues that attorneys in some cases may have entirely rational and deliberate reasons for their limited briefing.

Drawing on her background in tax law, Professor Hickman argues, that both deliberate strategy and rational ignorance explain deviations from general principles of administrative law in tax regulation. However, recent cases suggest some movement toward the Levy and Glicksman model of uniformity. Read More

Solar Rights for Texas Property Owners

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In response to Jamie France’s note, A Proposed Solar Access Law for the State of Texas, Professor Bronin urges future commentators to focus on three additional areas of inquiry related to proposed solar rights regimes. Bronin argues that such proposals would be strengthened by discussion of potential legal challenges to the proposals, related political issues, and renewable energy microgrids.

Ms. France’s proposal for the State of Texas includes the elimination of preexisting private property restrictions that negatively affect solar access. Bronin argues that this proposal would be strengthened by a discussion of potential challenges under federal and state takings clauses. Additionally, Ms. France’s suggestion that zoning ordinances protect homeowners’ solar access would benefit from a discussion of challenges that might be raised by home rule cities in Texas. Furthermore, to provide a full perspective, a discussion of possible alternative rules for Houston, which lacks a zoning ordinance, might add to Ms. France’s proposal, according to Bronin.

Bronin also emphasizes that proposals for solar rights regimes, such as that of Ms. France, often affect various interest groups, and commentators should address the political issues that this creates. Specifically, in discussing Ms. France’s proposal for the State of Texas, Bronin identifies the lack of political support for small-scale renewable energy installations as opposed to large-scale projects, Texas’s current budget shortfall, and powerful interests groups that are affected by the proposal.

Finally, Bronin encourages other commentators to consider advocating for renewable energy microgrids. Bronin has described these as “small-scale, low-voltage distributed generation between neighbors for energy derived from sources such as solar collectors, wind power systems, microturbines, geothermal wells, and fuel cells, which have minimal negative impact on the environment.” Bronin believes that renewable energy microgrids “should be a key part of solar access regimes in any state.” Read More

On Regulatory Arbitrage

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Professor Barry evaluates Professor Fleischer’s analytical framework developed in Regulatory Arbitrage, which addresses how actors respond generally to regulations, but also the related issue of what limits parties’ ability to avoid regulations. Barry offers praise for the framework’s flexibility, ability to consider issues of regulatory arbitrage, and policy neutrality, but provides three comments regarding the framework.

First, Barry argues that “professional constraints” arising from being a member of the legal profession and a partner at a law firm are not as irrelevant as Fleischer claims with regard to their ability to restrain regulatory arbitrage. Barry draws from his experience in professional practice in expressing his belief that while they are far from being a perfect prevention mechanism, such professional constraints offer some value.

Second, Barry expresses surprise at the lack of discussion in Fleischer’s article of the ability of family members to avoid regulations through collective action, since such discussion would support Fleischer’s arguments regarding the effect of anti-avoidance regimes on regulatory arbitrage. Specifically, regardless of the fact that families are in the best position to circumvent regulations due to their relationships, avoidance by such families is not believed to be a major issue, according to Fleischer. Rather, the archetypal regulatory avoider is the sophisticated repeat player in the financial markets. Barry argues that the effectiveness of anti-avoidance legal rules reconciles this discrepancy, thereby strongly supporting one of the article’s main arguments.

Third, Barry conveys concern with Fleischer’s usage of financial arbitrage, a more established concept, as a model to analyze regulatory arbitrage. Barry’s apprehension is limited to how using such a framework may distract the readers’ attention from a more pertinent definition of regulatory arbitrage. More precisely, financial arbitrage occurs when there are multiple prices on economically identical assets, whereas regulatory arbitrage occurs when there is a mismatch between the economics of a transaction and its concomitant regulation, and using examples from the former situation to inform the latter may place one “on the wrong track.” Read More

Taking It to the Streets

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Blackmail criminalizes the threat to do something that would not be criminal if one actually did it. It is seemingly paradoxical that it should be a crime to make certain kinds of threats, even though the threatened acts are perfectly legal. In Taking It to the Streets, Professor Green responds to Competing Theories of Blackmail: An Empirical Research Critique of Criminal Law Theory by Professor Paul Robinson et al. Green finds that the authors ingeniously derive concrete scenarios from abstract theories, that they provide a concise summary of the various blackmail theories, and that their methodological techniques are exemplary. Putting aside the authors’ achievement, Green focuses on the article’s shortcomings. Green characterizes the authors’ article as attempting to solve the problem in a novel if unusual way: by asking a collection of laypersons what they think should count as blackmail.

Blackmail is not unique in criminal law. Similar to fraud and false pretenses, blackmail is a form of theft in which the blackmailer attempts to obtain property from the victim without his valid consent, and uses a coercive, though otherwise lawful act, to do so. However, blackmail is distinguished based on the subject matter of the threat. Demands for money based on threats to do some kinds of acts (expose embarrassing information) but not others (file a lawsuit) are considered criminal. Green asks, then, whether there is any principled way to distinguish between these two kinds of threats.

Robinson and his colleagues ask this question to ordinary people. In doing so, they try to determine if the law is in harmony with the community’s sense of justice. Green provides several contexts in which he thinks it is useful to have data concerning community views on particular offenses. For example, “it is useful to know if people believe that a particular paradigmatic act is sufficiently blameworthy to justify criminal sanctions in the first place.” He finds that the authors’ study offers valuable data as to these issues.

In addition to gathering data, the authors also wanted the scenarios to reflect a range of prominent theorists’ views about why the law is justified in treating blackmail as a crime. Green considers this effort to translate abstract theory into concrete scenarios to be “the most impressive achievement of the article.” Yet, he thinks the theorists cited were probably trying to formulate a critical theory to explain why the core cases of informational blackmail should be treated as a crime, and not to devise a theory that would accord with widely shared moral intuitions. Nor is Green sure that this is a satisfactory way of testing which theory the public would favor. Instead, he suggests it might be better to explain the leading theories and ask the public directly which they favor, rather than attempt to translate them into testable scenarios first.

Lastly, Green turns to the article’s taxonomy of state blackmail statutes. He argues that one important factor the authors failed to include is the breadth of the range of threats criminalized. That is, not only what the statutes require the blackmailer to demand but also what they require him to threaten. Green finds it puzzling that the authors did not include this factor in their schema. Read More

The Establishment Clause: Political Metaphor or Guarantor of Rights?

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In this piece, Professor Underkuffler responds to Professor Schragger’s The Relative Irrelevance of the Establishment Clause. Schragger argues that the Establishment Clause as judicially enforced law is overrated by scholars, given that few of the Court’s doctrinal rules in this field are enforced. Underkuffler thinks that if these doctrinal rules, such as nonendorsement or anti-entanglement, are mere political metaphors intended to influence the political branches and the constitutional debate, then this would be a much weakened role for the Establishment Clause as well as the Court.

Underkuffler agrees that a gap exists between rhetoric and reality in the Court’s jurisprudence in this field. However, she argues that, while some aspects of the doctrine do not provide a basis for realistic legal rules, others present eminently workable standards to protect rights. In the latter case, these are real guarantors of rights.

Schragger identifies the secular-purpose doctrine, the nonendorsement doctrine, and the anti-entanglement doctrine as three core doctrines of the Establishment Clause that the Court has failed to enforce. Underkuffler notes that this claim should be put into perspective. While the Court might announce broad principles, it can only enforce these principles in cases that come before it. Rather, the lower courts and other organs of government must enforce or distinguish the Court’s pronouncements in the vast majority of cases. So, the Court’s role as an enforcer of constitutional doctrine is overstated.

Underkuffler next addresses Schragger’s arguments for each of the three core doctrines. She notes that in the abstract, each can be extended too far, to the point of incoherence and unworkability. In these cases, the doctrines are best viewed as hortatory reminders by the Court of areas of potential danger. But, argues Underkuffler, it is important that we not go too far. In many applications, the doctrines articulate rules that are as enforceable as those in any other constitutional context, and in such cases the Establishment Clause is more than a political metaphor—it is a guarantor of rights. Read More

A Comprehensive Theory of Deal Structure: Understanding How Transactional Structure Creates Value

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Professors Knoll and Raff argue that Professor Fleischer’s theory that transactional lawyers produce an optimal transactional structure by balancing Coasean transaction costs and regulatory costs is incomplete. Instead, they advance the reverse Modigliani-Miller theorem as a comprehensive theory of transactional structuring. According to this theorem, company managers cannot change the value of that company by altering its capital structure if three assumptions hold: efficient capital markets, no transactions costs, and no taxes. In the real world, however, these assumptions do not hold, providing transactional lawyers with an opportunity to create value. Specifically, by identifying situations where the Modigliani–Miller assumptions fail and by employing capital-structure techniques that reduce the cost from the violation of those assumptions, transactional lawyers produce an optimal transactional structure. Read More

Volume 88

Keeping Republics Republican

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In his response to Prof. Brian Galle, Prof. Rob Atkinson offers a “republican philanthropy” perspective to Prof. Galle’s “charitable charity” approach. First, Prof. Atkinson helpfully places Prof. Galle’s thesis in the larger context of charity scholarship; he elucidates the history and differences between nonprofit and for-profit charitable institutions, comparing and contrasting them with governmental institutions. Prof. Atkinson argues that Prof. Galle’s approach makes a valuable contribution to rebutting the for-profit charity assumption that nonprofits are inefficient; however, he believes that governmental institutions are in the best position to provide charitable services. Using the University of Texas School of Law as an example, he demonstrates that republican philanthropies—institutions that are neither for-profit nor traditional “charitable charities”—sponsor important public goods like this debate itself. Read More

Patent Remedies and Practical Reason

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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. Read More

The Voting Rights Act Through the Justices‘ Eyes: NAMUDNO and Beyond

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In this Essay, Douglas tells us that “[t]he most surprising action from the Supreme Court’s latest term may be what it did not do: strike down Section 5 of the Voting Rights Act . . . as unconstitutional.” Douglas explores the Court’s recent decision in Northwest Austin Municipal Utility District Number One v. Holder (NAMUDNO), in which the Justices managed to avoid invalidating Congress’s reauthorization of the “preclearance” provision of the Voting Rights Act (which requires preapproval for changes to voting procedures in covered jurisdictions). This Essay explores the reasons behind the Court’s 8–1 opinion, which resolved the issue on narrow statutory grounds, and what the comments in dicta by various Justices may mean for future election law cases.

Douglas first discusses the Court’s statutory interpretation and constitutional avoidance approach in NAMUDNO. He then explains how each current Justice generally views the Voting Rights Act (VRA) by analyzing their voting patterns in previous VRA cases. He concludes that the Court’s recent approach in NAMUDNOand other election law cases reveals a trend toward “strategic compromise” among the Justices in this area. Over the past few years, Douglas argues, Justices on the Court have “compromised their usual positions in election law cases in favor of a strategic and incremental approach to effectuate their long-term goals (or ward off starker and less favorable results).”

This Essay includes an Appendix — a table of VRA cases and individual Justices’ voting records in them used by the author in his analysis, which may be useful to those seeking more in-depth information about the Supreme Court’s jurisprudence concerning the Voting Rights Act. Read More

Executions without Legitimacy? Why the ALI Action Matters

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Prof. Zimring adds to the discussion Profs. Steiker and Steiker began on the role the American Law Institute (ALI) and the death penalty provisions of the Model Penal Code have played in the death penalty dispute. Specifically, he suggests “three lessons from the half-century ALI story that are of ironic importance.” The first lesson is that preoccupation with political expediency can exact a high cost in the law reform process. The second is that the the withdrawal of the death penalty provisions from the Model Penal Code by the ALI is as effective at undermining the death penalty as an abolitionist’s stance would be. The last lesson is that the sustainability of capital punishment requires not just majority public support but also legal intellectual respectability, which is now lacking. Read More

Making Adequacy More Adequate

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In this piece, Professor Marcus proposes that Professor Tidmarsh’s adequacy metric would serve better as a standard than a rule. Marcus praises the metric as a convincing and stimulating game-changer, but he also highlights a potential criticism: the adequacy requirement, foundational as it is, should not be reduced to any single test, even one as sensible as Tidmarsh’s. To prove his point, Marcus examines two categories of cases, one for which a strict application of the “do no harm” test would preclude arguably desirable class litigation, and one for which his test would permit unattractive distributional inequities among class members. Read More

Notice and Patent Remedies

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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.”

Like other property rights regimes, patent law should have an effective system for giving notice and for providing incentives to respond to notice once given. Analogizing to the real property system, Hovenkamp describes several important principles of notice systems. Such systems generally require collaboration by government officials and private-market participants. Moreover, the duty to provide or obtain notice ought to be placed on the party that can do so at the lowest cost. In line with this reasoning, Hovenkamp writes that when recording is cheaper than searching, the burden should be placed on the recorder. And where interests are not recorded, the owner’s duty to provide alternative kinds of notice is expanded.

With these principles of notice in hand, Hovenkamp turns to the patent-recording system. He finds that it is not nearly as reliable as the real property system. Although highly technical rules for drafting patent claims exist, the language of such claims lacks the clarity of deed descriptions. In addition, patent searches are not only more costly but highly unreliable.

Some of these problems are of course inherent to the patent system. But, aruges Hovenkamp, patent law should take a lesson from real property. Where the notice system breaks down, patent law should impose a duty upon owners to compensate by providing effective notice. In light of this, the author discusses the “late claim” feature of patent law, using the Rambus case as an example of its flaws and how to fix it. After addressing some other patent-damages issues related to notice, Hovenkamp concludes that as patents have come to resemble a kind of property rather than a monopoly—a good thing—it ought to be treated as such. The notice system of patent law, then, is “an essential policy lever that can aid a court in determining the remedy most consistent with the innovation-furthering goals of the patent system.” Read More

The Power of Warm Glow

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In this Response, Professor Rodrigues states that while she largely agrees Professor Galle’s argument that nonprofit charities cannot be reduced to their tax-exempt status, she disagrees with him on two points. First, Rodrigues argues that Galle overstates the problem posed by for-profit firms offering charitable services. Second, she insists that Galle understates the power of the “warm glow” in the nonprofit organization. Read More

Comparative Originalism

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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. Prof. Fontana argues that, when the nation predates the creation of a constitution, key cultural and political understandings also predate the constitution, thereby diminishing the importance of originalism. Read More

The Challenges of Fiduciary Administration

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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. Read More

How Embattled Are U.S. CEOs?

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In his Response to Professors Kahan and Rocks, Professor Damman cautions against blind acceptance of the proposition that corporate CEO’s are losing power vis-à-vis shareholders. First, he notes that questions of power are complex and difficult to measure. Second, he questions Kahan and Rock’s estimations of the impact of statutory and privately adopted rules. Finally, he critiques Kahan and Rock’s detection of a long-term trend in losses of power for executives. Read More

The Functions of Ethical Originalism

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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. Read More

Intellectual Liability in Context

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Professor Golden’s response to Professor Crane highlights the limitations on Prof. Crane’s thesis, notably the difficulties that accompany an attempt to precisely calculate awards sufficient to catalyze creative activity both in the short-term and long-term. Professor Golden also takes issue with Professor Crane’s arguments for permanent injunctions to nonpracticing patentees and his defense of private-bargaining as a method of circumventing questions of the court’s institutional competence in patent-rate setting. Read More

Nixon‘s Revenge

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In his Response to Professor Sacharoff’s Article, Professor Gerhardt critiques the use of sources, contending that Professor Sacharoff reads too much into the “antimonarchical premises” of the Constitution and too little into other sources. Gerhardt suggests alternatives to Sacharoff’s reading of the structure and context of the Constitution, as well as precedents and analogies that might inform our judgment about the extent to which former presidents might or should have any control over executive privilege. Read More

Optimal Tax Treaty Administrative Guidance

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In his Response to Professor Kirsch, Professor Boise critiques the assertion that administrative regulations are superior to technical explanations in interpreting tax treaties. He explains three imperatives that any interpretation regime must meet (authoritativeness, comprehensiveness, and timeliness) before offering other alternatives on optimal treaty guidance. Read More

Procedural Adequacy

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In her Response to Professor Tidmarsh’s Article articulating the “do no harm” principle, Professor Burch explores Tidmarsh’s theory from a procedural legitimacy perspective. She considers the assumption that in any given class action both attorneys and class representatives tend to act as self-interested homo economicus. She argues that (1) tailoring adequacy to egocentric behavior by providing a floor to minimally acceptable conduct creates a troubling anchor that is at odds with agency and ethical principles; and (2) this proposed change, particularly as it tolerates collusion and unequal treatment among class members, may adversely impact perceptions of procedural justice and class-action legitimacy. Read More

Patent Valuation Theory and the Economics of Improvement

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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. Landers proposes that, in order to bridge the differences in current theoretical viewpoints, the explicit addition of the economics of improvement is necessary. Read More

Rewriting the Roberts Court’s Law of Treaties

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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. Read More

He Went Back, Jack, and Did It Again: Thoughts on Retributivism, Recidivism as Omission, and Notice

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Responding to Professor Lee, Guha Krishnamurthi argues that Lee’s objections to the Bad Character, Notice, and Disobedience accounts are unpersuasive. As a result, Krishnamurthi argues that Lee’s own account, Recidivism as Omission, does not have any of the advantages over the competing accounts that Lee claims it has. He argues that there are further detractions to Recidivism as Omission that make it implausible and possibly redundant. Finally, he contends that the Notice account best explains the intuition that the recidivist deserves more punishment. Read More

Some Corrections and Pushbacks on Grand Jury Rights: A Response to Professor Wildenthal

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In this piece, Sarah Agudo responds to Professor Wildenthal’s criticism of a prior Texas Law Review article authored by her and Professor Steven G. Calabresi discussing, among more than 100 other individual rights, grand jury rights. Agudo responds to several of Professor Wildenthal’s critiques of her methodology, while noting that some of his suggestions provide useful areas in which to expand the research on the state constitutional history of grand juries in future publications. Read More

The Contextualization of Tort Law

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In response to Professors Goldberg and Zipursky’s article, Professor Richard Epstein offers an instrumentalist response. Although instrumentalism distances itself from notions of individual wrongs—focusing instead on tort law as a tool of social control with loss prevention at its heart—Prof. Epstein argues that there are good instrumental reasons for directing attention to the doer–victim relationship. In addition, he argues that Goldberg and Zipursky have offered a theory short on facts: they speak of negligence, strict liability, and legal and moral wrongs, but they do not give any instances of the particular conduct to which these norms apply.

Their lack of fact density explains why they are unable to come up with a single account of tort law that covers all of the diverse elements that fall within its scope. Prof. Epstein disaggregates the various elements of different torts from one another in order to retell the entire story in a coherent fashion. Read More

Volume 87

Control Killings

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In this comment, Professor Tuerkheimer advances the notion of “control killings,” or viewing domestic violence homicide as the final act in a pattern of various forms of abusive conduct.

She begins by noting that the Supreme Court evinced a fairly sophisticated understanding of domestic violence as a pattern of conduct in Giles, but that it was still wanting in some respects. The Court overlooks the centrality of power and control to the batterer’s design, and so fails to capture the true essence of battering. Next, she focuses on Professor Lininger’s third per se rule—inferring intent to silence a victim from a history of abuse and isolation. This, she says, raises the complex issues that need to be addressed properly. Professor Lininger suggests that the inquiry under this rule would properly be to quantify the amount of domestic violence necessarily entailing an intent to silence the victim, but Professor Tuerkheimer is not convinced. She believes that the aim should be to focus on demystifying the connection between the murder and the past abuse. This would require lower courts to recognize that the central feature of domestic violence is power/control and that homicide in this context is the ultimate act of control. She then proceeds to provide evidence that the central feature of domestic violence is power or control over the victim, including conduct other than acts of physical violence. Finally, Professor Tuerkheimer concludes that in the forfeiture context courts should be concerned whether the defendant has, through all of his battering conduct, acted to reinforce the victim’s connection to him, fortifying her reluctance to ally herself with the state against him in a prosecution. Read More

Response: Directing Military Operations

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In this Comment to Professor Prakash’s article, Professor Ramsey disagrees with Prakash’s contention that the Constitution does not grant the President any exclusive military powers.

In particular, Ramsey takes issue with Prakash’s view that Congress’s constitutional power “to make Rules for the Government and Regulation of the land and naval Forces” gives Congress all-encompassing military power. He finds that although the Constitution grants Congress the authority to pass standing laws regulating general military conduct, the Constitution does not grant Congress the power to direct battlefield operations. Comparing the Constitution’s language to that of its predecessor, the Articles of Confederation, Ramsey argues that the President, alone, has the power to direct military operations, and congressional attempts to exercise such authority would be unconstitutional. Read More

Being Heard after Giles: Comments on the Sound of Silence

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In this comment, Professor Raeder examines the major claims in Professor Lininger’s article, agreeing with some but not all of his suggestions.

First, she agrees that an originalist approach to the Confrontation Clause will not work in the domestic violence context because domestic violence was not even criminalized at the time of the founding, and explores this area further. Next, she examines the per se rules that Professor Lininger proposed for inferring intent to silence the victim in domestic violence cases. While she thinks these rules will help simplify forfeiture decisions and believes they should provide sufficient evidence of forfeiture, she would add that the rules should be rebuttable presumptions. The defendant should be able to rebut whether in the individual case they actually prove the existence of the inferred or actual intent supporting forfeiture. Also, she believes that it would be appropriate to allow the admission of other forms of evidence sufficient to prove forfeiture. Specifically, she would expand Professor Lininger’s per se rules to include two other categories: proof that the defendant has an abusive personality, and proof that the decedent suffered from Post Traumatic Stress Disorder, explaining why this would be helpful. Finally, she focuses on Professor Lininger’s efforts to redefine the forfeiture hearsay exception. She believes that it would still be better to confine the exception to the witness tampering context because it lacks reliability, and can be more directly dealt with by other hearsay exceptions. Read More

Privacy and Fictitious Contracts

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In this comment to Intellectual Privacy by Neil Richards, Professor Anderson discusses the problems inherent with a binary legal classification system that treats information as either all private or all public in an age where communications technologies make the line between private and public information blurry at best.

He approves of the shift in law that recognizes the difference between, for example, a conversation overheard by one’s coworkers, which may be repeated to their families over dinner, and a conversation overheard by the microphone of a undercover investigative reporter, which may be broadcast to the world. Professor Anderson then calls for reform of the legal fiction that governs check-the-box information-surrender provisions. He calls those provisions what they are: contracts of adhesion, and suggests discarding the fiction altogether in favor of a solution that does not allow private entities to force us to disclose private information under the pretense that our disclosure is voluntary. Read More

A Response to The Sound of Silence

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In this comment, Professor King-Ries explores Professor Lininger’s proposed solution to the conundrum created by the Supreme Court’s decision in Giles v. California, regarding forfeiture by wrongdoing in the domestic violence context.

Professor Lininger advocates the creation of bright-line rules for determining when it is appropriate to infer a defendant’s intent to prevent his victim from testifying. Profesor King-Ries agrees this is the right approach but finds the rules incomplete. Instead, Professor King-Ries believes that whenever the prosecution can establish that a battering relationship exists between the defendant and the victim, it is appropriate to infer the defendant’s intent to prevent the victim from testifying for the purposes of the forfeiture by wrongdoing doctrine. However, Professor King-Ries explains that a battering relationship can involve more than just violent conduct—such as control over financial resources, or emotional isolation—and that because Professor Lininger’s bright-line rules focus only on the violence aspect, they may be inadequate. For example, a defendant’s confiscation of the victim’s credit cards after the victim’s reporting of a violent incident might be far more effective at preventing testimony than a punch, but it would fall outside Professor Lininger’s per se rule regarding acts of violence during the pendency of the prosecution. Read More

The Where and Why of Intellectual Privacy

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In this comment, Professor Blitz argues that professor Richards’ concept of Intellectual Privacy could benefit from a little less First Amendment theory in one area, and a little more in another. In particular, Professor Blitz takes issue with how Professor Richards defines the activities that come within the scope of intellectual privacy protections, suggesting that this area should utilize less First Amendment theory.

Additionally, however, Professor Blitz suggests that Intellectual Privacy could use a better understanding as to why solitary and private intellectual exploration is an important First Amendment value. Read More

There‘s Still Hope: Life After Giles v. California

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In this comment, Professor Hanna explains why she believes Professor Lininger’s article is so important: it develops a test for getting around the problem created by the Supreme Court for the prosecution of domestic violence murders.

The problem created in Giles is that prosecutors are required to prove that the defendant had the specific intent to silence his victim when he killed her, before allowing forfeiture of confrontation rights. However, Professor Lininger’s article grabs onto language in the majority and concurring opinions suggesting that lower courts are permitted to infer that intent, and develops three per se rules for when it is appropriate. She believes that since this test focuses on the broader context of domestic violence abuse, as opposed to focusing on just the moment the murder occurred, it should help prosecutions of domestic abusers.

She also focuses on the question of whether advocates for the victims of domestic abuse should emphasize the gender bias in these crimes, showing how the law treats women unfairly in this context, or whether they should de-emphasize it in order to win over the likes of Justice Scalia. After discussing the issue, she concludes that trying to win over Justice Scalia is pointless because he is too committed to originalism in the Confrontation Clause context to be affected either way by the disparate impact this has on women. Read More

The Meaning of “Intellectual Privacy”

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In his comment to Intellectual Privacy by Neil Richards, Professor Slobogin praises Richards for his scholarship, but identifies two pragmatic problems with Richards’s argument.

The first is a problem of classification. Slobogin argues that what Richards terms “intellectual records,” which includes lists of books one owns and websites one visits, often reveal little more about us than conclusions that can be drawn from data about our purchases. He finds the distinction Richards draws to be incomplete. It is not clear to Slobogin why data about purchases do not merit extra protection when, by piecing together large numbers of otherwise innocuous data on purchases, one may reach the same conclusions as if one had access to intellectual records. Slobogin also questions the role of the First Amendment in privacy protection when Fourth Amendment doctrine and scholarship address, if not solve, many of the problems Richards identifies. Read More

Giles v. California: Is Justice Scalia Hostile to Battered Women?

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In this Comment to Professor Lininger’s article, Professor Miccio focuses on two important moral dilemmas highlighted by the Court’s decision in Giles v. California: “(1) whether a search for truth should be sacrificed to our notions of Due Process; and (2) whether Giles’s protection of the accused is premised on beliefs tainted by sexism.”

She argues that the Court’s opinions in Giles, Davis v. Washington, and Town of Castle Rock, Colo. v. Gonzalez, which were all written by Justice Scalia, reflect Scalia’s contempt for battered women. In Miccio’s opinion, Scalia’s formalistic legal reasoning in this area of the law has been inconsistent, while his misogynistic view of women has been undeniably constant. Read More

A Comment on “Misbehavior and Mistake in Bankruptcy Mortgage Claims”

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In this Comment to Professor Porter’s article, Professor Littwin discusses the disturbing results of Porter’s investigation into the mortgage-servicing industry and the mortgagee-filed proofs of claim process in bankruptcy. Littwin also evaluates Porter’s suggestions for improving the process.

She considers their probability of success by focusing on the likelihood of adoption and effectiveness upon institution. Littwin’s Comment concludes with a discussion of the proposed elimination of the exemption currently preventing “cram down” of primary-residence home mortgages in bankruptcy. Read More

In Defense of Giles: A Response to Professor Lininger

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In this comment, Professor Flanagan explains that he disagrees with Professor Lininger’s approach to the forfeiture issue, and in particular opposes the use of bright-line tests to satisfy Giles’ inferred intent standard.

Professor Flanagan argues that the Supreme Court correctly defined the limits of the forfeiture by wrongdoing doctrine in Giles, noting that history and precedent both support having the intent requirement, even if you are not an originalist. Furthermore, Professor Flanagan believes that Giles will probably not have as detrimental an effect on domestic violence prosecutions as some believe, and that this claim is premature; there are still many victim statements that are capable of admission despite the renewed approach to the Confrontation Clause. Furthermore, because there cannot be one law for domestic violence cases, and another for all other types of crimes, Professor Flanagan explains his worry that zeal for convicting domestic abusers will undermine this important Constitutional right. Finally, he examines Professor Lininger’s proposals in detail, suggesting they are not necessary. Read More

Professor Katherine Porter and Proofs of Claims by Mortgage Servicers

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A consumer bankruptcy attorney with significant experience dealing with the claims of mortgage servicers, O. Max Gardner III believes that Professor Porter’s study on such claims arose out of mounting concern on the part of bankruptcy courts “about the institutional accuracy and truthfulness of mortgage servicers’ claims.” He applauds her work, noting that Professor Porter’s study will enable more attorneys to evaluate such claims with scrutiny. However, while acknowledging this as a significant step in the right direction, Gardner calls for continued work in uncovering all the misconduct of mortgage servicers. Read More

Comment on Max Minzner, Putting Probability Back into Probable Cause

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First, he suggests that courts may already consider officer success rates, at least qualitatively, in the form of “officer experience.” He argues that courts are more likely to believe more experienced officers, and likewise more experienced officers are more likely to be successful in searches. Professor Lerner also takes issue with Professor Minzner’s claim that incorporating officer success rates will make the probable cause determination more accurate because the article does not fully develop the meaning of probable cause. The comment explores some possibilities and problems associated with various conceptions of the term. Also, Professor Lerner addresses Professor Minzner’s claim that his proposal will mitigate the problem of “testilying,” suggesting it is unclear if this claim would hold true in the suppression hearing context. Finally, the comment suggests that the record-keeping burden placed on police officers by this proposal may be too onerous, which could deter some officers from applying for warrants in the first place. Read More

Probability, Probable Cause, and the Law of Unintended Consequences

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In this comment, Professor Rosenthal agrees that success rates of officers should be taken into account in making probable cause determinations, but points out one area that Professor Minzner may have overlooked: the problem of overdeterrence.

If the success rate of every officer is scrutinized, and officers are indeed sensitive to the exclusion of evidence or the potential for civil liability, it is likely they will simply refrain from conducting searches except when the likelihood of success is extraordinarily high. Professor Rosenthal suggests that this should be a cause for great concern because a decrease in the number of searches in high-crime areas could lead to a substantially higher crime rate, especially violent crime. He concludes, however, that this should not point towards disregarding Professor Minzner’s proposal, but discusses two solutions to the problem. Read More

Death from the Public Domain?

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In this comment, Professor Outterson challenges Professor Roin’s argument that pharmaceutical innovation and public health are harmed by the patent doctrines of non-obviousness and novelty.

He argues that obscure or accidental publications are not actually pushing too many inventions into the public domain and thus substantially limiting the patent eligibility of subsequent pharmaceutical inventions. Outterson particularly disputes Roin’s use of the pain medication Ultracet as an example of such harm. After reviewing the factual circumstances surrounding the drug’s design, the patent application process, and subsequent litigation challenges, he concludes that: the disclosure of the prior art that limited Ultracet’s patentability was not inadvertent; that Ultracet was successfully patented and commercialized notwithstanding the public domain (and did not unduly suffer from free riding); and that ultimately Ultracet was not a particularly valuable drug. The Ultracet case explored in this comment raises very interesting counterpoints to Roin’s claims concerning the real-world harms caused by the non-obviousness and novelty doctrines. Read More

Candide Meets the Sherman Act

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In this comment, William Shieber argues that Professor Crane’s analysis is fundamentally flawed for two reasons. First, Shieber suggests that Crane’s measure of how to judge political interest—considering references to antitrust issues in presidential candidate speeches, and considering the absence of direct Presidential involvement in filing antitrust suits—is wanting. Second, Shieber considers the fact that both the Federal Trade Commission and the DOJ, the agencies responsible for antitrust enforcement, are overseen by political appointees. From this, Shieber argues that one cannot remove the values of these appointees from the regulatory process, which necessarily means that the ultimate decisions made by these agencies have a substantial political component. For these reasons, Shieber disagrees with Crane’s conclusion that U.S. antitrust enforcement has declined in political salience. Read More

Pangloss Responds

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In his response to Mr. Shieber’s comment, Professor Crane clarifies that his article does not suggest antitrust decisions are apolitical. Crane agrees with Shieber that the ideological bent of the administration has some effect on antitrust outcomes. However, Crane notes that antitrust has ceased to be a campaign issue and is almost completely absent from political debate. Crane also criticizes Shieber’s use of the Bush administration’s settlement of the Microsoft antitrust case to support his opinion that antitrust enforcement is still highly partisan without first noting that the D.C. Circuit opinion—handed down at the very beginning of the Bush administration—damaged the government’s bargaining position. Read More

Volume 86

A Comment on The Role of Precedent in Constitutional Adjudication

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In this Comment, Professor Neuborne attempts to place his views within Professor Shapiro’s taxonomy of approaches to constitutional precedent. While Professor Neuborne believes that constitutional decisions deserve a qualified respect, he does so for different reasons than those offered in Professor Shapiro’s Article. In Professor Neuborne’s view, adherence to constitutional precedent is not justified by any particular deference to the wisdom of the past but rather by the practical restraint that it imposes on the political power of modern judges. Read More

Precedent as Tactical Weaponry

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In this Comment to Professor Shapiro’s Article, Professor Paulsen—a known skeptic of constitutional stare decisis—colorfully analyzes how different approaches to precedent affect strategic coalition building on a multimember Court. Under this new tactical theory, Professor Paulsen speculates how his views on constitutional precedent might affect his relative power as a fellow member of Justice Shapiro’s Court. Read More

The History of Section 5 of the Voting Rights Act from Another Perspective

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Professor Robert S. Bickerstaff offers a response to Professor Kousser’s article that includes both a contrary analysis of Supreme Court decisions regarding Section 5 and also a detailed discussion of the precise effects of Section 5 on minority representation by elected officials. Professor Bickerstaff offers insights based on his thirty-two years of experience representing jurisdictions covered by the election-change review process of Section 5. Although much has been accomplished, real-world application of Section 5, particularly against the backdrop of partisan politics, has presented new challenges for achieving the goal of meaningful minority participation. Read More

The Year of the Gun

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The Supreme Court’s grant of certiorari in the District of Columbia gun-ban case promises to make this Term “The Year of the Gun.”[1] Though the Court will review many other important cases, the Heller case presents a unique constellation of characteristics: It involves the scope of a right that many Americans regard as highly important, but that has not been signifi­cantly addressed by the Supreme Court before, and it does so in an unusually open national election year, with no incumbent or obvious successor running for president.

Though the Court did address Second Amendment issues somewhat in the 1939 case of United States v. Miller,[2] the treatment was limited, and uninformed by opposing counsel because only the federal government was represented.[3] The Court’s decision in Heller will thus give the Justices a chance to address—or to duck—a number of important Second Amendment issues and may also pose potential difficulties for the Court’s existing jurisprudence of unenumerated rights, in a setting in which the po­litical ramifications are likely to be obvious and immediate. Read More

Pick a Card, Any Card

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In response to Professor Littwin’s Article, Ronald Mann compliments the article’s focus on the consumers of credit cards, rather than the lenders. Mann cites two important contributions from the article. The first is the surprising importance of credit cards in maintaining social status in the milieu that Littwin studies. The second contribution is crystallizing the need for credit-card products that offer real precommitment.

Mann also praises her research on the use of credit cards at the family level, as opposed to the national or company level. Finally, Mann defends Littwin’s decision to focus on a particular demographic group because the differentiation of credit-card products means that choices available to low-income consumers will be very different from middle- and upper-income consumers. But Mann wants to broaden the research. Mann asserts that a targeted project involving respondent-directed sampling should enable reliable analysis of the stability of Littwin’s conclusions over a larger area. Read More

A Commentary on Beyond Usury

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In response to Professor Littwin’s Article, Cathy Mansfield praises the article’s proposed borrower-driven protections. But Mansfield argues that the article does not provide a solid basis for its conclusion that usury regulation would limit access to credit-card credit for low-income households and so is undesirable from both public-policy and low-income-household perspectives. Mansfield concludes that Littwin’s proposals are groundbreaking but can only be enhanced by reasonable government rate regulation. Read More

Necessity, Not Autonomy

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In his response to Professor Hill’s Article, Mark Stein argues for a somewhat different framing of the substantive due process right advocated by Professor Hill. Stein favors a right to receive necessary medical treatment free of government interference. However, he does not believe that the right should apply across the board. If, in a particular setting, allowing a claim of medical necessity would have negative consequences for social welfare, no right of medical necessity should be recognized. Read More

A View from the Trenches

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In his response to Professor Hill’s Article, Scott Ballenger discusses issues of medical autonomy in light of his experience as counsel for the Abigail Alliance for Better Access to Developmental Drugs. While he ultimately agrees with Professor Hill on the existence of a fundamental right to make medical treatment decisions free of unwarranted government interference, he highlights two potential disagreements with the article. First, he argues for a greater emphasis on the distinction between laws genuinely protecting the public health and those invading purely private medical decisions. Second, he questions the assumption that the crucial debate in this area involves whether to trust judges or legislatures on issues of medical or scientific fact. Read More

Form, Function, and Justiciability

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In his response to Professor Siegel’s Article, Professor Bellia takes a closer look at some of the Article’s conclusions. In particular, Professor Bellia responds to the assertion that congressional power to generate justiciability demonstrates the purposelessness of justiciability doctrines. Are justiciability doctrines an effective limit on federal power? If constraining the power of a federal institution can be a legitimate constitutional purpose in itself, does congressional control over justiciability act as a real, and not merely illusory, limit on judicial power?

Professor Bellia examines important historical thought on the subject—including James Madison’s concerns expressed at the Federal Convention and John Marshall’s writings in a number of Marshall Court decisions—as evidence that persons knowledgeable in law reasonably understood the forms that limited judicial power to function as constitutional limitations. The result places the analysis at the center of a fundamental separation-of-powers debate over the respective roles of Congress and the federal courts. Read More

Volume 85

Unrealistic Dichotomy

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In this response, Professor Buel expounds on some of the constitutional issues that Professor Lininger discussed in his piece. By extending Sixth Amendment protection to defendant conduct, Buel argues that the Court is going beyond its intended meaning of simply preventing the state from denying defendants an opportunity to confront their accusers. Furthermore, Buel notes that the Court’s new bright line test for testimonial and nontestimonial hearsay creates more confusion than clarity by imparting a difficult temporal element that is virtually impossible for courts to utilize in a meaningful and consistent manner. Read More

A View From the Trenches

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In responding to Professor Lininger’s article, Casey Gwinn offers his perspective as a prosecutor who has been involved with domestic violence issues for the last twenty years. Gwinn offers four points to supplement the understanding of Lininger’s article. First, he argues that domestic violence prosecutors need to once again focus on evidence-based prosecutions instead of relying on hearsay statements. Second, he notes that the evidence-based prosecution method is alive and well in spite of the recent judicial pendulum swing. Third, Gwinn explains how the increased cooperation of domestic violence victims in prosecutions due to the Family Justice Center model influences the difficulties faced by domestic violence prosecutors. Finally, Gwinn suggests that although the legislative action proposed by Lininger should be applauded, we must not forget what we have learned about prosecuting domestic violence offenses from the last twenty years. Read More

What‘s Truth Got to Do With It?

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In this response, Professor Miccio critiques Professor Lininger’s article for accepting the implications of the Supreme Court’s recent decisions for witness unavailability and social accountability. More specifically, Professor Miccio suggests that we should question three aspects of the Court’s Confrontation Clause jurisprudence: first, she illustrates the problems with equating a trial with a search for truth; second, she argues that we should not view confrontation as synonymous with a battered woman’s resistance of her attacker; and finally, she questions the Court’s definition of an “emergency” with respect to testimonial and nontestimonial statements. Given the implications of accepting the Court at face value on these points, Professor Miccio then analyzes Professor Lininger’s proposals for legislative action, and suggests that effective legislative reform requires accountability. Read More

Forfeiture in the Domestic Violence Realm

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In her response to Professor Lininger’s piece, Professor Tuerkheimer explores utilizing the doctrine of forfeiture in the wake of the new Confrontation Clause jurisprudence. While recognizing that state forfeiture statutes provide new tools for the prosecution of domestic violence, Tuerkheimer highlights the importance of recognizing that the crime of battering is unique and, thus, forfeiture can only be properly utilized in this paradigm of courts are sensitive to this reality. Read More

Hidden Agendas – A Response

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In his response to Professor Goodman, Professor Anderson explores several facets of Stealth Marketing and Editorial Integrity. One aspect of sponsorship disclosure laws that Anderson examines is the complementary need for greater and more vigorous enforcement. Anderson also questions the rationale behind applying sponsorship disclosure laws uniformly to all types of media, drawing distinctions between news media and entertainment media. Read More

Stealth Risks of Stealth Marketing

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In this Response piece, Prof. Goldman explores the potential adverse consequences of Prof. Goodman’s proposal for sponsorship disclosure laws. More specifically, Goldman argues that any deliberation on such disclosure laws must consider: (i) why consumers desire to know the source of content; (ii) whether consumer distrust of marketing wrongly affects consumers’ evaluation of content; and (iii) the adverse effects of “noisy” disclosures. Read More

Comments on Stealth Marketing

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Given the rapid and recent changes in the character and nature of media markets, Professor Wagner questions the necessity of an effort to enact sponsorship disclosure laws. Concentrating on the lack of assurance that such disclosure will enhance editorial integrity and on the effects of the “long tail” of available media outlets, Wagner suggests why we should be skeptical of Professor Goodman’s proposed disclosure regime. Read More