Revisionist History Discusses Vol. 82 Texas Law Review Essay Learn More

Blog

Publication Type: Essay

April 05th, 2018 | Issue 5 Volume 96

Regulating Motivation

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on proprietary trading by banks have led to a rare bipartisan consensus: the Volcker Rule must be pared back or even repealed.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 […]

Read More >

January 12th, 2018 | Online Edition

Filling the Texas Federal Court Vacancies

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.”

Read More >

January 12th, 2018 | Online Edition

Understanding Immigrant Protective Policies in Criminal Justice

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 […]

Read More >

November 15th, 2017 | Issue 7 Volume 95

Respect for Sovereignty in Cyberspace

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 […]

Read More >

November 15th, 2017 | Issue 7 Volume 95

Beyond Self-Defense and Countermeasures

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 […]

Read More >

November 15th, 2017 | Issue 7 Volume 95

Squinting Through the Pinhole

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, […]

Read More >

November 15th, 2017 | Issue 7 Volume 95

Did Russian Cyber Interference in the 2016 Election Violate International Law?

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 […]

Read More >

November 15th, 2017 | Issue 7 Volume 95

A Cyber Duty of Due Diligence

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 […]

Read More >

November 15th, 2017 | Issue 7 Volume 95

Interpretation Catalysts in Cyberspace

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] […]

Read More >

November 15th, 2017 | Issue 7 Volume 95

Give Them an Inch, They’ll Take a Terabyte

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 […]

Read More >

May 16th, 2017 | Issue 6 Volume 95

Toward a Science of Torture?

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. […]

Read More >

October 25th, 2016 | Issue 7 Volume 94

Economic Structure and Constitutional Structure: An Intellectual History

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 […]

Read More >

October 25th, 2016 | Issue 7 Volume 94

Domination, Democracy, and Constitutional Political Economy in the New Gilded Age: Towards a Fourth Wave of Legal Realism?

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 […]

Read More >

October 25th, 2016 | Issue 7 Volume 94

The Second Freedmen’s Bureau Bill’s Constitution

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 […]

Read More >

October 25th, 2016 | Issue 7 Volume 94

Overcoming the Great Forgetting: A Comment on Fishkin and Forbath

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 […]

Read More >

October 25th, 2016 | Volume 94

Republicanism and the Constitution of Opportunity

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 […]

Read More >

October 25th, 2016 | Issue 7 Volume 94

The “Constitution of Opportunity” in Politics and in the Courts

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 […]

Read More >

October 25th, 2016 | Issue 7 Volume 94

Two Views of International Trade in the Constitutional Order

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 […]

Read More >

October 25th, 2016 | Issue 7 Volume 94

The Political Economy of “Constitutional Political Economy”

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 […]

Read More >

October 25th, 2016 | Issue 7 Volume 94

Why is There No Socialism in the United States? Law and The Racial Divide in the American Working Class, 1676–1964

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 […]

Read More >

October 25th, 2016 | Issue 7 Volume 94

Building Labor’s Constitution

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 […]

Read More >

October 25th, 2016 | Issue 7 Volume 94

Libertarian Corporatism is Not an Oxymoron

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 […]

Read More >

October 25th, 2016 | Issue 7 Volume 94

Inclusion, Exclusion, and the “New” Economic Inequality

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 […]

Read More >

March 09th, 2016 | Online Edition

Of Horses, Donkeys, and Mules

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.

Read More >