Texas A&M University School of Law

Texas A&M University School of Law
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    Legal Clutter: How Concurring Opinions Create Unnecessary Confusion and Encourage Litigation

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    Good judges are clear writers. And clear writers avoid legal clutter. Legal clutter occurs when judges publish multiple individually written opinions that are neither useful nor necessary. This essay argues that concurring opinions are the worst form of legal clutter. Unlike majority opinions, concurring opinions are legal asides, musings of sorts—often by a single judge—that add length and confusion to an opinion often without adding meaningful value. Concurring opinions do not change the outcome of a case. Unlike dissenting opinions, they do not claim disagreement with the ultimate decision. Instead, concurring opinions merely offer an idea or viewpoint that failed to garner support from the rest of the Court. They are cries for attention that are, usually, better left unwritten. Concurring opinions are legal clutter.This essay challenges judges—particularly Supreme Court Justices— to refrain from subjecting lawyers and law students to legal clutter. Court opinions are already too long. They can be complex. Distracting readers from the actual holding of a case causes unnecessary confusion, even for other judges. Two recent examples, Justice Kavanaugh’s individual concurrence in NCAA v. Alston and Justice Thomas’s individual concurrence in Dobbs v. Jackson Women’s Health Organization , illustrate the problem. Journalists and lawyers, eager to see systematic change at the NCAA, have latched on to one sentence in Justice Kavanaugh’s Alston concurrence—repeating lines that are neither the Court’s holding nor controlling. Similarly, Justice Thomas’s solo concurrence in Dobbs suggesting the entire line of substantive due process cases should be overturned, left some wondering if overturning Roe was just the beginning of a stare decisis regression. Worse still, both Justice Kavanaugh and Thomas seemingly invite new litigation to ensure that their individual viewpoints ultimately become the law. This is the danger of concurring opinions. Below the surface, many concurring opinions are nothing more than a latent form of judicial activism. On the surface they are mere legal clutter

    Negotiation Theories Engage Hybrid Warfare

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    The concept of hybrid warfare has arisen recently to describe the efforts, short of outright war, used by nations to disrupt and destabilize each other. This Article reviews available negotiation theories, concepts and skills to determine whether they can help governmental actors and business organizations targeted by hybrid warfare respond effectively. In other words, can negotiation theories, concepts and skills be used to engage effectively in “hybrid conflict management”? The Article urges that international diplomacy and multiparty negotiation theories and skills, as well as the more recent scholarship that has developed regarding hostage negotiation and “wicked problems,” are likely to be most relevant. The Article concludes with specific recommendations for business targets and governmental actors

    The changing chemistry between intellectual property and investment law

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    The past decade has seen investment law entering the intellectual property domain. Welcome or not, this area of law has raised questions and concerns about the future of the international intellectual property regime. This chapter explores the changing chemistry between intellectual property and investment law. Specifically, it discusses future developments in four areas: (1) international trade and investment agreements; (2) investor-state disputes involving intellectual property claims; (3) new developments in intellectual property law; and (4) external considerations outside the intellectual property and investment domains

    Pro-Choice Plans

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    After Dobbs v. Jackson Women’s Health Organization, the United States Constitution may no longer protect abortion, but a surprising federal statute does. That statute is called the Employee Retirement Income Security Act of 1974 (“ERISA”), and it has long been one of the most powerful preemptive statutes in the entire United States Code. ERISA regulates “employee benefit plans,” which are the vehicle by which approximately 155 million people receive their health insurance. Plans are thus a major private payer for health benefits—and therefore abortions. While many post-Dobbs anti-abortion laws directly bar abortion by making either the receipt or provision of abortion illegal, other anti-abortion laws target activities thought to facilitate abortion, most notably paying for abortions. Some of these laws, or proposed laws, attempt to punish paying for out-ofstate abortions, i.e., paying for abortions in a state where abortions are legal. ERISA says otherwise. If the plan covers abortion as a benefit, ERISA preempts laws purporting to bar plans in states where abortion is banned from paying for out-of-state abortions. It likewise preempts laws attempting to obligate plans to “report” on pending or completed abortions obtained by plan members. For the first time in the scholarly literature, this Article explains how and why that is the case—and thus the underappreciated importance of ERISA in the post-Dobbs world

    Comparing & Contrasting Economic and Natural Law Approaches to Policymaking

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    Eric Claeys’s monograph, Natural Property Rights, offers a comprehensive and thoughtful articulation of a general theory of property rights rooted in the natural law tradition. This detailed review compares Claeys’s work with the consequentialist law and economics perspective on property. After contrasting their objectives, assumptions, and methodologies this article concludes that, unlike more absolutist approaches, Claeys’s flavor of natural property rights places a modicum of weight on the welfare effects central to economic analysis. This restrained nod in the direction of practicality, however, does not eliminate some of the long-known weaknesses of natural law. Perhaps the most glaring gap in Claeys’s book is its failure to acknowledge and analyze the modern law of nuisance with its enriched set of remedies capable of making everyone a winner. At a macro level, Claeys (like most other natural law theorists) offers no substantive case against redistribution as an optimal method for addressing the fact that charity is a public good. The book, again in keeping with the natural law tradition, eschews any serious empiricism—indeed not a single argument it makes contains any empirical support. This is a fatal flaw for anyone with the ambition to offer practical advice on tougher property law issues for which the right answers depend on myriad social parameters whose values lie beyond the reach of deduction

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    Delgado Replies

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    In Outside Inside, Frank Michelman gives me a pat on the back for two articles setting out the case for a rotten social background (“RSB”) defense. Ultimately, however, my efforts, in his eyes, at best amount to the proverbial good old college try. Because of a host of “establishment concerns,” mainstream judges will shy away from it, even in the most compelling cases. Unless criminal defendants qualify for an accepted defense such as insanity or diminished capacity, judges will see a severely deficient childhood as bearing only on the morality of punishment, not its legality

    Diversity, Inclusion, and Equity in the Engineering Curriculum: Evaluating the Efficacy of a New Teaching Module

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    Current diversity and sexual harassment trainings often take an informative approach that results in a gap between theoretical knowledge and practical resolutions of ethical dilemmas. Available research suggests that diversity training programs often elicit the greatest amount of change among people with a minority identity and can result in hostility from majority group members. To better prepare all engineering students for modern-day organizations, it’s imperative that universities develop effective approaches at the student level to mitigate these discrepancies. We propose that our novel ethics-based training will elicit positive diversity-related outcomes overall. We inductively explore the differential impact of diversity training across majority and minority identities. Longitudinal quantitative data were collected to examine changes in participant attitudes and behaviors in response to the diversity module. Undergraduate engineering students enrolled in an introductory engineering ethics course at a large Southwestern university were presented with a week-long teaching module on diversity. Survey results were evaluated to measure differences in effectiveness among majority and minority students. The diversity training successfully decreased levels of sexism, acceptance of sexual harassment myths, and increased intentions to confront discrimination. Differences in outcome variables between majority and minority members were found with regard to political orientation, race, and physical and mental disability status. Overall, this study presents a promising new avenue for diversity training scholarship. Specifically, we find that an ethics-based approach to diversity training may be particularly effective for majority group students

    Personhood, Property, and Public Education: The Case of Plyler v. Doe

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    Property law is having a moment, one that is getting education scholars’ attention. Progressive scholars are retooling the concepts of ownership and entitlement to incorporate norms of equality and inclusion. Some argue that property law can even secure access to public education despite the U.S. Supreme Court’s longstanding refusal to recog- nize a right to basic schooling. Others worry that property doctrine is inherently exclusionary. In their view, property-based concepts like resi- dency have produced opportunity hoarding in schools that serve affluent, predominantly white neighborhoods. Many advocates therefore believe that equity will be achieved only by moving beyond property-based claims, for instance, by recognizing education as a public good or human right. The Court has upheld a constitutional right of access to public schools on just one occasion. In Plyler v. Doe, the Justices found that Texas could not bar undocumented students from schools or charge them tuition. The Court did not declare education a fundamental right or alienage a suspect classification. Instead, the opinion relied on several rationales, some property-based and some not. Residency, for instance, featured prominently in the case, but so did a trope of childhood innocence. Recently, there have been calls to revisit Plyler, making this an opportune moment to evaluate how its reasoning will fare. Despite growing interest in property-based entitlements as a strategy for inclusion, Plyler’s fate will likely turn on considerations that transcend property: the blamelessness of children, the cruelty of relegating them to a lifetime of illiteracy, and the implications that such deliberate indifference has for our democratic integrity

    The Disembodied First Amendment

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    First Amendment doctrine is becoming disembodied—increasingly detached from human speakers and listeners. Corporations claim that their speech rights limit government regulation of everything from product labeling to marketing to ordinary business licensing. Courts extend protections to commercial speech that ordinarily extended only to core political and religious speech. And now, we are told, automated information generated for cryptocurrencies, robocalling, and social media bots are also protected speech under the Constitution. Where does it end? It begins, no doubt, with corporate and commercial speech. We show, however, that heightened protection for corporate and commercial speech is built on several “artifices” - dubious precedents, doctrines, assumptions, and theoretical grounds that have elevated corporate and commercial speech rights over the last century. This Article offers several ways to deconstruct these artifices, re-tether the First Amendment to natural speakers and listeners, and thus reclaim the individual, political, and social objectives of the First Amendment

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    Texas A&M University School of Law is based in United States
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