Texas Law Review

Rollover, Rollover: A Behavioral Law and Economics Analysis of the Payday-Loan Industry

texaslrev — Fri, 19 Feb 2010 00:47:54 +0000

Note appears in Issue 3

Karen E. Francis

Posted on Thu, 2010-02-18

Citation: 88 Texas L. Rev. 611 (2010)

In this Note, Francis examines the payday-loan industry and the existing and proposed regulations that control it. Looking through the lens of behavioral law and economics, she illustrates how some borrowers systematically underestimate their future borrowing, leading to unexpected rollover loans and imposing substantial and unnecessary costs on these borrowers. The Note also demonstrates how lenders are able to exploit these borrowers’ underestimation biases to aggravate the costs incurred in the "debt trap."

The Note begins by drawing on empirical research to offer a snapshot of the industry and the "typical" borrower of payday loans. Next, Francis sets the regulatory stage of the payday-loan industry, paying specific attention to the proposed framework under House Bill 1214. She then lays out the BLE theory with respect to payday lending, specifically showing how the underestimation bias may explain the frequency of payday-loan rollovers. Lastly, she presents a debiasing solution to increase the effectiveness of the disclosures proposed under House Bill 1214.

Fiduciary Administration: Rethinking Popular Representation in Agency Rulemaking

texaslrev — Fri, 19 Feb 2010 00:33:21 +0000

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Article appears in Issue 3

Prof. Evan J. Criddle

Posted on Thu, 2010-02-18

Citation: 88 Texas L. Rev. 441 (2010)

Over the last several decades, some scholars have argued that rulemaking by unelected agency officials imperils popular sovereignty. The conventional wisdom is that federal law should resolve this problem by allowing the President to serve as a proxy for the “will of the people” in administrative rulemaking. However, Professor Criddle suggests that a better solution for promoting popular representation in agency rulemaking is to extend private fiduciary duties to administrative agencies.

Professor Criddle begins by accepting the premise that federal agency rulemaking often diverges from the will of the electorate. However, he rejects the notion that this inconsistency can be eliminated by equating the President’s preferences on questions of regulatory policy with the will of the people. Empirical evidence has shown that presidents do not necessarily pursue administrative policies that are consistent with the views of the electorate. Indeed, the notion that presidents might serve as reliable proxies for majoritarian preferences in agency rulemaking becomes indefensible once one acknowledges how little the public knows about agency rulemaking.

As an alternative to the presidential proxy argument, Professor Criddle proposes the adoption of a fiduciary model of popular representation. Like fiduciaries in private law, all federal officers exercise discretionary administrative authority for the benefit of those subject to their power, and all are bound by duties of purposefulness, fairness, integrity, solicitude, reasonableness, and transparency. Rather than focus on a representative’s obedience to the public will, fiduciary representation emphasizes agencies’ responsibilities to act deliberatively and reasonably in promoting the public welfare.

Don’t Mess with Houston, Texas: The Clean Air Act and State/Local Preemption

texaslrev — Fri, 19 Feb 2010 00:50:03 +0000

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Note appears in Issue 3

Ryan Hackney

Posted on Thu, 2010-02-18

Citation: 88 Texas L. Rev. 639 (2010)

In this Note, Hackney discusses the legal issues surrounding state/local preemption. He examines this broad area of law by looking at what steps a city may take to ensure that its citizens breath clean air if the city determines that the state is not doing enough to regulate air pollution.

Noting that local government is often the only entity that can effectively solve this type of problem, Hackney addresses the question of how far a city can go in addressing the issue given that state law expressly governs.

Now Online: Vol. 88, Issue 3

texaslrev — Fri, 19 Feb 2010 03:54:47 +0000

Now Online: Vol. 88, Issue 3

Volume 88, Issue 3 is now online at texaslrev.com. New articles: John M. Golden, Principles for Patent Remedies, and Evan J. Criddle, Fiduciary Administration: Rethinking Popular Representation in Agency Rulemaking.

Principles for Patent Remedies

texaslrev — Fri, 19 Feb 2010 00:36:15 +0000

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Article appears in Issue 3

Prof. John M. Golden

Posted on Thu, 2010-02-18

Citation: 88 Texas L. Rev. 505 (2010)

In this Article, Professor Golden examines the debate about what the value of patent remedies generally is or should be. This public debate has become relatively heated in light of recent Supreme Court jurisprudence that may decrease the availability of injunctions forbidding continued infringement. Professor Golden concludes that policy making in this area should take guidance from specific principles of adaptation and implementation.

The 2006 decision of the U.S. Supreme Court in eBay Inc. v. MercExchange, L.L.C. has spawned conflicting answers from lower courts and academic commentators regarding how to decide when injunctions should issue. At the same time, Capitol Hill entities representing a variety of industry heavyweights have poured millions into lobbying for or against patent reform bills. Amidst all the resulting commotion, one fact seems clear. We really have little specific sense of what the value of remedies for patent infringement generally is or should be. Indeed, with a patentee’s ability to invoke the leverage of an injunction cast into doubt by the eBay case, the hunt for a satisfactory remedial system is likely to be a long one.

How then should we determine patent remedies’ proper nature and scope? Professor Golden argues that policy making should take guidance from three principles of adaptation and two principles of implementation: (1) nonabsolutism in the formulation and application of legal doctrine; (2) antidiscrimination with respect to business models; (3) learning, an interest in fostering the production of useful information; (4) administrability; and (5) devolution of significant decisional responsibility to private or government actors nearest to the facts of an individual case. Although these principles do not uniquely determine any single best system of patent remedies, they provide a framework for assessing the relative merits of policy proposals and for suggesting ways in which proposals can be improved. In particular, the principles have implications for current debates regarding the availability of permanent injunctions, the calculation of reasonable-royalty damages, and the possibility of remedial exemptions for prior users or independent creators.

Can the Courts Rescue Us from the Patent Crisis?

texaslrev — Fri, 19 Feb 2010 00:38:14 +0000

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Book Review appears in Issue 3

Prof. Scott Baker

Posted on Thu, 2010-02-18

Citation: 88 Texas L. Rev. 593 (2010)

Professor Baker reviews The Patent Crisis and How the Courts Can Solve It, by Dan Burke and Mark Lemley.

Professor Baker examines Burke and Lemley’s proposal that the courts, and not Congress, are best suited to resolve the patent crisis by adopting a more sensible approach to innovation policy. To implement this proposal in an industry-specific manner (as the authors suggest), the Federal Circuit must identify the problems of a given industry and then come up with a doctrine to solve the identified problems. Professor Baker discusses the potential pitfalls of this proposal and examines the likely effects on patent law if the proposal is ultimately implemented.

TLR Symposium: Listen to Panels & Speeches and Read Recent Press Coverage

texaslrev — Sat, 06 Feb 2010 08:37:59 +0000

The 2010 Texas Law Review symposium, "Law at the Intersection of National Security, Privacy, and Technology", is taking place today and tomorrow (Feb. 4-6) in Austin, TX. A number of the panel discussions and speeches given at the symposium are now available for listening online at www.texaslrev.com/symposium/listen. Recordings of panels for Feb. 6 will be added soon after they take place.

Also take a look at the symposium homepage, www.texaslrev.com/symposium, to see recent press coverage of the event in the news, updated regularly.

TLR Symposium 2010: Law at the Intersection of National Security, Privacy and Technology

texaslrev — Thu, 04 Feb 2010 14:41:27 +0000

Texas Law Review’s 2010 symposium: National Security, Privacy, and Technological Change, is taking place from February 4th-6th at the University of Texas School of Law. It promises to be one of the nation’s premier symposia. This year’s conference will address intelligence law and data collection, the legal environment pertaining to the government’s efforts to enhance cybersecurity, the prospects for technological solutions to difficult, national-security-related problems, and the role of the courts, Congress, and the media in these endeavors. Highlights of the symposium include keynote speeches by Assistant Attorney General David Kris and Admiral Michael McConnell, former Director of National Intelligence. Participants represent the full spectrum of perspectives on this debate, including government, private sector, academia, the civil liberties community, legislative, and judicial. In addition, we anticipate broad media coverage by the New York Times, the Washington Post, Newsweek, NPR, the Atlantic, and other media outlets in attendance.

For more information, please visit the Symposium homepage at http://www.texaslrev.com/symposium.

Holdover Trademark Licensees and the Counterfeiting Loophole

texaslrev — Mon, 11 Jan 2010 04:29:00 +0000

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Note appears in Issue 2

Travis R. Wimberly

Posted on Sun, 2010-01-10

Citation: 88 Texas L. Rev. 415 (2009)

In this Note, Wimberly addresses one of the areas where trademark protections break down--the problem of "holdover licensees," when an entity formerly licensed to use a mark continues to do so after the license has expired or terminated.

He argues that infringement liability alone is typically insufficient to satisfy trademark law doctrine and policy. Instead, he proposes that holdover licensees should generally incur liability for a more severe and more appropriate cause of action: trademark counterfeiting. Wimberly explores the deficient precedents that in his view have allowed holdover licensees in certain courts to escape counterfeiting liability, then suggests potential legislative and judicial solutions that would enable courts to more readily impose counterfeiting liability in appropriate cases.

Former Presidents and Executive Privilege

texaslrev — Mon, 11 Jan 2010 04:23:45 +0000

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Article appears in Issue 2

Prof. Laurent Sacharoff

Posted on Sun, 2010-01-10

Citation: 88 Texas L. Rev. 301 (2009)

The Constitution provides former Presidents with no powers or role, and yet numerous former presidents have asserted executive privilege in order to withhold information from Congress, historians, and the public. In this Article, Professor Sacharoff argues that former presidents should not retain any power to assert executive privilege.

Sacharoff highlights the extent of this problem--executive privilege has been used as a shield by presidents including Truman, Nixon, and George W. Bush. This article engages the question, largely neglected in legal scholarship to date, of whether such privilege remains in former presidents or transfers to the sitting President. Notwithstanding the decision in Nixon v. Administrator of General Services, Sacharoff concludes that former Presidents should retain no right to assert the privilege, using an analysis based upon the text, structure, and historical context of the Constitution and its antimonarchical premises, as well as the nature of executive privilege when compared to other privileges.