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CURRENT LOCATION: Publications - Latest Releases and News - SEPTEMBER 2006 THRU AUGUST 2007

September 1, 2006 thru August 31, 2007

What's New at University of Texas School of Law Publications

August, 2007

Latino Focus
In Recognition of Eduardo Roberto Rodriquez, 1
Jonathan Gracia

Blinded by the White: Latino School Desegregation and the Insidious Allure of Whiteness, 7
Daniel Aaron Rochmes

The Social Psychology of Peremptory Challenges: An Examination of Latino Jurors, 25
Roger Enriquez & John W. Clark, III

The (Boundedly) Rational Basis of Trademark Liability, 331
Jeremy N. Sheff
The Law of Negative Knowledge: A Critique, 387
Charles Tait Graves
Permanent Injunctions After eBay v. MercExchange: The Year in Review, 417
Darryl J. Adams and Victoria Wicken
Did Markman and Phillips Answer the Right Question? A Review of the Fractured State of Claim Construction Law
and the Potential Use of Equity to Unify It, 457
Andrew B. Dzeguze
Patenting Tax Strategies: The Case For Excluding Legal Methods From the Realm of Patentable Subject Matter, 491
Brian C. Banner

State Bar News, 509

July, 2007

  • Much Faster Foreign Shipping Now Available For ALL UT Law Subscribers
    Starting back in May, all UT Law journals are shipping hardcopies to foreign addresses using Global Mail (formerly DHL).
    This means foreign subscribers will receive their issues in a few weeks rather than months. Also, foreign shipments are now
    tracked at least to the country of destination.

Royalty Obligations in Texas Relating to Production of Injected Carbon Dioxide, 285
Jeff Weems and Robert B. Boemer
Getting More out of This "Relationship": Re-examining FERC's Generator Interconnection Authority to Help More
Renewable Resources Interconnect Under FERC's Interconnection Policy, 311
Michael G. Henry
Salty Standing: An Analysis of Standing as It Relates to Assignees of Oil and Gas Interests, 339
Elizabeth A. Ryan

Note & Comment
Incentives for Electric Generation Infrastructure Development, 373
Gregory C. Jantz
Recent Developments in Texas, United States, and International Energy Law, 395
Contributions from
Jennifer A. Powis
Thompson & Knight, LLP
Walter R. Mayer
Daniel W. Sanborn
Byron C. Romain and Maxim Scherbakov
Nabil A. Issa and Patrick F. Campos

Symposium: Frontiers of Intellectual Property
I. Software
Software, Patents, Incumbents, and Entry, 1579
John R. Allison, Abe Dunn & Ronald J. Mann
Software and Patent Scope: A Report from the Middle Innings, 1627
Robert P. Merges

II. Biotech
Patent Metrics: The Midmeasure of Innovation in the Biotech Patent Debate, 1677
David E. Adelman & Kathryn L. DeAngelis
Synthetic Biology: The Intellectual Property Puzzle, 1745
Sapna Kumar & Arti Rai
Commentary: Valuable Patents Redux: On the Enduring Merit of Using Patent Characteristics to Identify Valuable
Patents, 1769
John R. Allison & Thomas W. Sager

III. Copyright
Standing Copyright Law on Its Head? The Googlization of Everything and the Many Faces of Property, 1799
Oren Bracha
Lawful Personal Use, 1871
Jessica Litman
Why Copyright Law Excludes Systems and Processes from the Scope of Its Protection, 1921
Pamela Samuelson
Commentary: A Map of the Frontiers of Copyright, 1979
R. Anthony Reese

IV. Patent Reform
Patent Holdup and Royalty Stacking, 1991
Mark A. Lemley & Carl Shapiro
The Federal Circuit and Patentability: An Empirical Assessment of the Law of Obviousness, 2051
Lee Petherbridge & R. Polk Wagner
Commentary: "Patent Trolls" and Patent Remedies, 2111
John M. Golden
Reply: Patent Holdup and Royalty Stacking, 2163
Mark A. Lemley & Carl Shapiro

A Theory of Deception and then of Common Law Categories, 1359
Saul Levmore
Wrong Turns on the Road to Alternative Sanctions: Reflections on the Future of Shaming Punishments and Restorative
Justice, 1385
Dan Markel
Some Principles Require Principals: Why Banning "Conflicts of Interest" Won't Solve Incentive Problems In Biomedical
William M. Sage

Book Review Essay
Dispatches from the Tort Wars, 1465
Anthony J. Sebok

Distorting the Law: Politics, Media, and the Litigation Crisis;
Risks, Reputations, and Rewards: Contingency Fee Legal Practice in the United States;
The Medical Malpractice Myth

Personal Conflict, Sectional Reaction: The Role of Free Speech in the Caning of Charles Sumner, 1519
Gregg M. McCormick
The Role of Consumer Preference Development in Incremental Innovation: How Diamond Multimedia Helped
Create the iPod, 1553
William R. Peterson

June, 2007

  • Texas International Law Journal [more info]
    Volume 42, Number 2, Spring 2007

Tough Love: The Dramatic Birth and Looming Demise of UNCLOS Property Law (and What Is to Be Done About It), 241
Peter Prows

Choice of Law for Quantification of Damages: A Judgment of the House of Lords Makes a Bad Rule Worse, 311
Russell J. Weintraub

"Orphans" or Veterans?: Justice for Children Born of War in East Timor, 323
Susan Harris Rimmer

The European Communities Biotech Dispute: How the WTO Fails to Consider Cultural Factors in the Genetically Modified Food Debate, 345
Laylah Zurek



  • Texas Review of Law & Politics [more info]
    Volume 11, Number 2, Spring, 2007


American Exceptionalism: Some Thoughts on Sanchez-Llamas v. Oregon, 219 [full text]
William E. Thro

Judicial Review of Special Interest Spending: The General Welfare Clause and the Fiduciary Law of the Founders, 239 [full text]
Robert G. Natelson

Judicializing Federative Power, 283 [full text]
J. Richard Broughton

Patriot 2005-2007: Truth, Controversy, and Consequences, 319 [full text]
Ronald J. Sievert




Article 106 of the United Nations Charter, 353 [full text]
Theodore M. Cooperstein



Professional Responsibility: ABA Accreditation Standards for Law Schools
The 2006 Federalist Society National Lawyers Convention

Law School Accreditation: Responsible Regulation or Barrier to Entry?, 377 [full text]
Douglas W. Kmiec

It's Not Perfect, But the ABA Does a Key Job in State-Based Regulation of Lawyers, 381 [full text]
Thomas D. Morgan

Seeking Competition in Law School Accreditation, 385 [full text]
John S. Baker, Jr.

Uncapturing Law School Regulation, 391 [full text]
Saul Levmore

ABA Accreditation Standards and Quality Legal Education, 395 [full text]
John A. Sebert


Reference Materials

State Constitutional Rights of Self-Defense and Defense of Property, 399 [full text]
Eugene Volokh



Treaty Rights and Remedies: The Virtues of a Clear Statement Rules, 419 [full text]
Ryan D. Newman

Unofficial Official Comments, 479 [full text]
Nigel Stark




Asbestos Lessons: The Consequences of Asbestos Litigation, 583
Paul D. Carrington
Who Does the First Amendment Protect?: Why the Plaintiff Should Bear the Burden of Proof in Any
Defamation Action, 613
William G. Hagans
The Debut of Modern Constitutional Procedure, 641
William M. Wiecek

All That Glitters Isn't Gold: Analyzing the Costs and Benefits of Litigation Finance, 707
Courtney R. Barksdale
Physicians at the Gates of Daubert: A Look at the Admissibility of Differential Diagnosis Testimony
to Show External Causation in Toxic Tort Litigation, 739
Ian S. Spechler
Standing First: Addressing the Article III Standing Defects of Rule 23(b)(3) Class Actions Composed
Wholly of Future Claimants, 773
Isil Yildiz

May, 2007

Revolving Trapdoors: Preserving Sufficiency Review of the Civil Jury After Unitherm and Amended Rule 50, 239
Steven Alan Childress
How Restitution and Unjust Enrichment Can Improve Your Corporate Claim, 265
George P. Roach
Amended Federal Rule of Evidence 408: Trapping the Unwary, 401
Robert A. Weninger

Federal Circuit Antitrust Law and the Legislative History of the Federal Courts Improvement Act of 1982, 457
David T. DeZern
A Divided Duty: The EPA's Dilemma Under the Endangered Species Act and Clean Water Act Concerning the National
Pollutant Discharge Elimination System, 487
Brian P. Gaffney
Circumventing the Competition: The Reverse Engineering Exemption in DMCA § 1201, 525
Paul J. Neufeld

The write-on packets for the Texas Review of Law & Politics will be available tomorrow (Wed.) at noon at the
communications desk in the atrium. All the instuctions will be included with each packet, and the deadline is
not until 5pm CST on Friday, June 22nd. You may choose to email or physically turn in your responses.

Those students who submit superior papers will have the opportunity to work closely with both top editors and
prominent conservatives from across the nation in putting together our next issues. Good luck on your remaining finals!

Open Source, Free Software, and Contractual Issues, 157
Dr. José J. González de Alaiza Cardona
Intellectual Property Licenses and Assignments Under Chapter 11 of the Bankruptcy Code: A Brief Survey
of the Nature of Property Rights Conferred and Implications Due to Reorganization, 213
Brett T. Cooke
How the Other Half Lives (Revisited): Twenty Years Since Midler v. Ford, 239
Alain J Lapter, Esq.

State Bar News, 327

Putting Lamborghini Doors on the Escalade: A Legal Analysis of the Unauthorized Use of Brand Names
in Rap/Hip-Hop, 1
Brian Goldman
Reconciling Sports Sponsorship Exclusivity with Antitrust Law, 33
John A. Fortunato & Jef Richards
Violence and Video Games 2006: Legislation and Litigation, 49
Clay Calvert & Robert D. Richards
From Claret to Mayo: The Antitrust Labor Exemption Argument Continues, 63
Christian Dennie
Anti-Doping Inconsistencies Snare American Star, 79
Peter Charlish & Rob Heywood

Music Publishers Slay Musicianship, 101
Aaron Cook
You've Got Messages: Modern Technology Recruiting Through Text-Messaging and the Intrusiveness of Facebook, 125
Matt Maher

April, 2007

Liberalism and Ability Taxation, 1057
David Hasen
Majority and Supermajority Rules: Three Views of the Capitol, 1115
John O. McGinnis & Michael B. Rappaport

Book Reviews
Can Religious Liberty Be Protected as Equality?, 1185
Thomas C. Berg
How Does "Equal Liberty" Fare in Relation to Other Approaches to the Religion Clauses?, 1217
Kent Greenawalt
The Limits of Equal Liberty as a Theory of Religious Freedom, 1247
Ira C. Lupu & Robert W. Tuttle

All reviewing
Religious Freedom and the Constitution

Chips Off Our Block? A Reply to Berg, Greenawalt, Lupu and Tuttle, 1273
Christopher L. Eisgruber & Lawrence G. Sager

Primary Jurisdiction Doctrine and the Circumforaneous Litigant, 1289
Paula K. Knippa
Posting Personal Information on the Internet: A Case for Changing the Legal Regime Created by § 230 of the
Communications Decency Act, 1321
David V. Richards

A Case Against the Federal Protection of Marriage Amendment, 1
Nancy Kubasek and Christy M. Glass
A Purse of her Own: The Case Against Joint Bank Accounts, 45
Lisa R. Mahle

Out of the Loop: Female Federal District Court Candidates Disadvantaged by a Nomination Process Imbued
with Favoritism, 103
Kathleen O'Connor Ives
Recognizing the Relationship Between Domestic Violence and Animal Abuse: Recommendations for Change to the
Texas Legislature, 129
Jennifer Robbins

Is Secularism Possible in a Majority-Muslim Country?: The Turkish Example, 1
Adrien Katherine Wing and Ozan O. Varol
Conflicts Between United States Immigration Law and the General Agreement on Trade in Services:
Most-Favored-Nation Obligation, 55
William Thomas Worster
Islamic Finance Opportunities in the Oil and Gas Sector: An Introduction to an Emerging Field, 119
Christopher F. Richardson
Sovereignty Revisited: International Law and Parallel Sovereignty of Indigenous Peoples, 155
Federico Lenzerini

The New Cultural Diversity Convention and its Implications on the WTO International Trade Regime: A Critical
Comparative Analysis, 191
Alex Khachaturian
The MOX Plant Case: The Question of "Supplemental Jurisdiction" for International Environmental Claims
under UNCLOS, 211
M. Bruce Volbeda

The American Journal of Criminal Law, one of the top student-edited legal journals in the nation devoted to exploring
current issues in criminal law, is holding a write on to add summer staff. Please submit a writing sample, resume and
current transcript to AJCL by 5 PM May 1. Applications should be delivered to the AJCL mailbox in the Communications
Center. Membership offers will be extended the week of May 21.

The Texas Journal on Civil Liberties and Civil Rights presents its annual symposium, Re-examining Incarceration,
on Tuesday April 17. This year's event features a critical discussion of civil rights issues surrounding incarcerated
persons in Texas.

The event begins at noon with lunch and a special guest speaker, Kerry Max Cook, author of Chasing Justice.
Kerry Max Cook is an innocent man who spent 22 years on Texas' Death Row. Mr. Cook's long struggle for
freedom and exoneration is said to be the result of one of the worst cases of prosecutorial misconduct in
American history. Mr. Cook will be telling his story in the auditorium, TNH 2.114. Lunch is provided on a first
come, first served basis. Two panels will follow in the Eidmann Courtroom, one discussing the state of juvenile
justice in Texas and the second discussing how civil society can work to effect change within the Texas prison
Panelists are specialists in this field, and include Will Harrell from the ACLU of Texas, as well as representatives
from the Texas Civil Rights Project, the Texas Coalition Advocate for Juvenile Justice, and the LBJ School of
Public Policy.

The Texas Journal of Oil, Gas, and Energy Law ( is currently hosting its annual Spring write-on.
The Spring write-on is a great way for students who know that they have an interest in energy law and in
participating in the journal community at UTLaw to obtain early acceptance to the newest law journal at UT.

Interested students will need to submit a personal statement, writing sample, and resume no later than 12 noon on
Thursday, April 19, to the TJOGEL box in the communications office in the atrium of the law school.

Applications are available on our website,
For questions, please contact Lisa Miller,

Rethinking Plea Bargaining: The Practice and Reform of Prosecutorial Adjudication in American Criminal Procedure, 223
Máximo Langer
Neuroscience Evidence, Legal Culture, and Criminal Procedure, 301
Michael S. Pardo
Reconsidering Spousal Privelges after Crawford, 339
R. Michael Cassidy

The Texas Journal of Oil, Gas and Energy Law (TJOGEL) will be interviewing 1L's and 2L's for supplemental Editorial
Board positions the week of April 9, 2007.

Service on the TJOGEL Board helps build strong leadership skills and unique networking opportunities, and NO prior
journal experience is required. Supplemental positions include:

Assistant Managing Editor
Director of Submissions
Director of Development (Fundraising)
Director of Public Relations
Director of Technology
Director of Current Events

Further TJOGEL information can be found at The application can be downloaded from the web site and
is due Friday, April 6th by NOON.

  • Texas Environmental Law Journal
    TELJ Applications and Happy Hour
    April 3, 2007 (Tuesday)
    Contact: Gregory A. Graml

Are you interested in becoming a member of the Texas Environmental Law Journal (TELJ)? Stop by our table
in the atrium on Tuesday April 3 between 10:30 AM and 2 PM to pick up an application and learn more about
the journal. You are also invited to join current TELJ members for happy hour on Tuesday from 5 to 7 at Posse
East (2900 Duval at San Jacinto).

March, 2007

The Texas International Law Journal (TILJ) will be interviewing first and second year students for summer staff positions
April 9th - April 13th. If you would like information about the journal, we invite you to stop by our table in the Atrium on
Monday, April 2nd - Wednesday, April 4th between 10AM - 1PM to speak with current journal members and pick up an

We look forward to meeting you and kicking off another successful year!

The Texas International Law Journal (TILJ) at The University of Texas School of Law and the Robert Strauss
Center for International Security and Law will sponsor a symposium on April 10–11 that addresses the legal
and political consequences of the recently enacted Military Commissions Act. The event—free and open to
the public—will be held in the Law School’s Eidman Courtroom.

Drafted in response to the U.S. Supreme Court’s decision in Hamdan v. Rumsfeld, the Military Commissions Act
(MCA) puts forth a purpose of “bringing to justice terrorists and other unlawful enemy combatants through full
and fair trials by military commissions.” However, many questions still remain. Is the Act appropriate legislation
under the U.S. Constitution? Does the Act violate international laws on human rights? What are the
consequences of having such legislation?

TILJ and the Strauss Center are encouraging a debate in an open and public forum in an effort to answer some
of these questions. Invited to speak at the symposium are experts from the Center for Constitutional Rights,
the Brennan Center for Justice, and Human Rights First as well as practitioners from across the country.

Experts will discuss the Military Commissions Act in four panels:

(1) Military Commissions
(2) Interrogation
(3) Standards and Procedures for Classifying ‘Enemy Combatants’
(4) Defining the Role of the Courts.

The Texas International Law Journal is the second-oldest student-edited journal at UT, and one of the oldest
and most prestigious international law journals in the United States. The annual symposium is the source for
many of TILJ’s most important published articles.

The Robert S. Strauss Center for International Security and Law works to facilitate multidisciplinary, non-
partisan, policy-relevant research and develop effective policy solutions to address the most pressing global
challenges facing the United States and the rest of the world. The Strauss Center was founded in 2006 in a
unique collaboration involving the College of Liberal Arts, the Lyndon Baines Johnson School of Public Affairs,
and the School of Law at The University of Texas at Austin, and the Lyndon Baines Johnson Foundation.

Related Links:

The Texas International Law Journal:

Robert S. Strauss Center for International Security and Law:

Should Property or Liability Rules Govern Information?, 783
Mark A. Lemley & Philip J. Weiser
Congress's Under-Appreciated Power to Define and Punish Offenses Against the Law of Nations, 843
J. Andrew Kent

Book Review Essay
The Supreme Court's Gatekeepers: The Role of Law Clerks in the Certiorari Process, 947
David R. Stras

Courtiers of the Marble Palace: The Rise and Influence of the Supreme Court Law Clerk
Sorcerers' Apprentices: 100 Years of Law Clerks at the United States Supreme Court

Judicial Misuse of History and § 1983: Toward a Purpose-Based Approach, 999
Eric A. Harrington
Rethinking the Peremptory Challenge: Letting Lawyers Enforce the Principles of Batson, 1031
Brian W. Stoltz

The Review of Litigation will host a symposium on Thursday and Friday, March 22 and 23, to consider the impact of the
Restatement of the Law Third, Torts: Products Liability and the future of products liability law and litigation.
Nationally renowned scholars, as well as judges and practitioners will speak in the Eidman Courtroom at The University
of Texas School of Law.

This two-day symposium falls on the eve of the Restatement's tenth anniversary. The American Law Institute (ALI)
approved the Restatement in the spring of 1997. Many expected the Restatement to live up to its name and provide a
summary of the current state of law. But critics argued that courts were divided on key issues and that the
Restatement gave products liability law an "anti-consumer angle." Panelists will address this and other issues affecting
litigation over such products as guns, lead paint, and pharmaceuticals. We invite you to join us.

Further information
Schedule & Speakers:
Registration for CLE Credit:
Pre-order Symposium Issue:

Applications for Editorial Board positions with the Texas Journal of Oil, Gas, and Energy Law (TJOGEL) are now posted
on the TJOGEL website, The TJOGEL is one of the largest and most active student organizations at
the law school offering Editorial Board members a unique opportunity to be involved in managing and leading a diverse
group of students and to interact with our practitioner and alumni supporters.

Applications are due by Monday, March 19th. Interviews will be conducted the evening of Sunday, March 25th, in the
TJOGEL office.

The positions available at this time are for the Editorial Board only, i.e.; Editor-in-Chief, Managing Editor, Chief Articles
Editor, Recent Developments Editor, Chief Financial Officer, and Symposium Director (detailed job descriptions are
available on the application itself). Positions are open to all rising 2L's and 3L's, though preference is given to 3L's for
editing positions and to returning journal or Oil and Gas Society members for all other positions.

There will be an additional round of interviews conducted in April for other Executive Positions in which strong
preference is given to rising 2L's, including: Director of Submissions, Technology Director, Director of Development,
Assistant Managing Editor, and Treasurer.

For any questions, please contact Kevin Robnett, Managing Editor, Applications with
resumes can be turned in to the TJOGEL box in the communications office or in the TJOGEL office one the fourth floor,
TNH 4.133.

Congratulations to the incoming TRESL 2007-2008 Editorial Board!

Editor-in-Chief: Hunter Summerford
Managing (Business Editor): Dave Wishnew
Managing (Technical Editor): Iain Kennedy
Executive Editors: Laura Van Tuyl and Scott Elliott
Submissions Editor: Mike Ramirez
Articles and Notes Editors: Lizett Martinez and Andre Montgomery
Events Coordinator: Aakash Parekh

Towards Attenuation: A "New" Due Process Limit on Pinkerton Conspiracy Liability, 91
Mark Noferi
Congress Attempts to Shine a Light on a Dark Problem: An In-Depth Look at the Prison Rape Elimination Act of 2003, 157
Kevin R. Corlew

Prosecuting Injustice: Consequences of Misconduct, 191
Kelly Gier

Don't Tell, Don't Ask: Narrow Tailoring After Grutter and Gratz, 517
Ian Ayres & Sydney Foster
Public but Private: Copyright's New Unpublished Public Domain, 585
R. Anthony Reese

Book Review Essay
Commerce and Regulation in the Assisted Reproduction Industry, 665
John A. Robertson

The Baby Business: How Money, Science, and Politics Drive the Commerce of Conception

Modding the Web: Secondary Liability Under Copyright and Web Modification Software in a Post-Grokster World, 703
Sumit R. Shah
Applying a "Maturity Factor" Without Compromising the Goals of the Class Action, 741
Benjamin J. Siegel

February, 2007

To all interested 1Ls and 2Ls:

The Texas Intellectual Property Law Journal (TIPLJ) is seeking Summer Staff Editors! Applicants for TIPLJ must be
in good academic standing and must be either a 2L or a 3L at the University of Texas School of Law during the 2007-
08 academic year.

There are many advantages and opportunities for joining, not the least of which is no write-on requirement.
Joining TIPLJ through our summer staff application process does not prevent you from joining any other journal and
does not require that you be in Austin during the summer.

Applications for Summer Staff Editors may be picked up in the TIPLJ office in Room 2.130.
Applications are due March 9, 2007 at 5:00pm in the TIPLJ office or the TIPLJ mailbox in the
Atrium Communications Center.

Feel free to come by the office if you have any questions.

The American Journal of Criminal Law is currently accepting spring write-on applications from first and second year
students interested in membership on one of the top student-edited legal journals devoted to exploring current
issues in criminal law.

Interested applicants should submit a legal writing sample, current resume, and a brief statement explaining their
interest in working for the Journal.
Submissions should be turned in to the AJCL mailbox (behind the communication center in the atrium) or e-mailed
to no later than Friday, February 23 at 4:00 p.m.

Please e-mail the Journal at with any questions regarding the write-on process.

Leading academics, consultants, practitioners and government officials will gather at The University of Texas School of
Law for the Second Annual Texas Journal of Oil, Gas, and Energy Law CLE Symposium on Thursday,
Feb. 15, and Friday, Feb. 16. The symposium is open to the public at no charge.

The symposium will address the legal implications of emerging energy technologies including wind, wave, solar, hydro,
and nuclear energy, liquefied natural gas, biodiesel, and renewable diesel.
The symposium is part of Oil & Gas Week 2007, sponsored by the Texas Journal of Oil, Gas, and Energy Law during Feb.–14–16.

All sessions will be held in the Law School’s Eidman Courtroom. Free admission and registration begins at 8 a.m. with
symposium opening remarks beginning at 8:55 a.m. on Thursday, Feb. 15. On-line registration is requested but not

“We wanted to build on the success of last year’s LNG Symposium by broadening the subject matter to include other
emerging technologies that are beginning to affect the industry,” Symposium Director Greg Jantz, a student member
of the Journal's editorial board, explained. “Topics include new energy sources as well as new methods for using more
traditional fossil fuels.”

“Our objective as a journal is to bring together legal professionals from around the nation and to facilitate these kinds
of diverse, cutting-edge discussions about the future of Energy Law. This symposium will accomplish precisely that,”
said Editor-in-Chief Brandon Seale of the Journal of Oil, Gas, and Energy Law at UT Law.

Symposium speakers include attorneys from Baker Botts; Bracewell & Giuliani; Fulbright & Jaworski; Hunton & Williams;
Porter & Hedges; Vinson & Elkins, and The Law Office of Carloyn Elefant. They also include an international
LNG consultant; professors from The University of Texas and the University of Houston; Commissioner Victor Carrillo
of the Texas Railroad Commission, and Commissioner Jerry Patterson of the Texas General Land Office.

The symposium is sponsored by the student-edited Texas Journal of Oil, Gas, and Energy Law, and will include
presentations and panel discussions over the course of two days.

Thursday presenters will include Professor Jacqueline Weaver from the University of Houston, who will introduce and
discuss the current state of oil; Carolyn Elefant, who will address wave and tidal energy sources; and Jay Kipper,
a geologist from the University of Texas working on the state’s FutureGen proposal. They also include Ben Israel,
an attorney with Bracewell & Giuliani, who will survey developments in alternative energy sources and examine their
effects on the energy field; and Professor Ernest Smith from The University of Texas will consider advances in
wind energy. Girard Miller from Fulbright & Jaworski will analyze current litigation trends; and Jay Kelley from
Vinson & Elkins will present on wind energy.

Friday presenters will include Steve Krebs from Baker Botts, who will survey issues in wind, solar, and biofuel;
Saby Ghoshray, an international LNG and GTL consultant who has worked with large oil companies including
Marathon Oil and will address issues in LNG; Joel Goldberg from Porter & Hedges, who will discuss landfill
gas projects; and Jo Ann Biggs from Hunton & Williams, who will address issues in nuclear energy.
Texas Railroad Commissioner Carrillo will participate in a panel discussion along with Professor David Spence from
The University of Texas, and Jim Barkley from Baker Botts, considering regulatory challenges of emerging
energy technologies. Commissioner Patterson from the General Land Office will address wind energy from a
regulatory perspective. The Journal’s Editor-in-Chief, Brandon Seale, will conclude the symposium with final remarks.

Inter Partes Reexamination of Patents: An Empirical Evaluation, 1
Roger Shang and Yar Chaikovsky
In Defiance of Bridgeman: Claiming Copyright in Photographic Reproductions of Public Domain Works, 31
Colin T. Cameron
Faulkner v. National Geographic Enterprises, Inc.: Driving a Truck Through the Eye of a Needle, 63
Thomas Dallal
Encouraging Willful Infringement? Knorr-Bremse Leaves Due Care In Patent Litigation in a State of Flux, 91
Andrew M. Newton
The Ghost Is the Machine: Protection of Process Patents Under 35 U.S.C. § 271(F), 123
Keith Bradley

State Bar News, 153

The Legacy of Grutter: How the Meredith and PICS Courts Wrongly Extended the
"Educational Benefits" Exception to the Equal Protection Clause in Public Higher Education, 1
Paul J. Beard, II
Class Action Lawmaking: An Administrative Law Model, 39
Mark Moller
Nazism, the Second Amendment, and the NRA: A Reply to Professor Harcourt, 113
Stephen P. Halbrook
The Irresponsible Lawyer: Why We Have an Amoral Profession, 133
Scott A. Fredricks

Supremacy Clause Limitations on Federal Regulatory Preemption, 157
Christopher R.J. Pace
Constitutional Implications of Senate "Holds" on Treaties and Diplomatic Nominations, 175
Robert F. Turner

Reference Materials
State Constitutional Rights to Keep and Bear Arms, 191
Eugene Volokh

The Texas Review of Entertainment and Sports Law will have spring write-on applications available at the
table on Monday, Feb. 19 during the Student Organization Fair. Applications are available for both 1Ls and 2Ls.

Austin, Texas-- Lynne G. Beresford, Commissioner for Trademark Examination Policy at the United States Patent and
Trademark Office will give the keynote address at the 8th Annual IP Symposium hosted by the Texas Intellectual
Property Law Journal, Friday, February 9th.

The IP Symposium will be held in the Eidman Courtroom at the Law School. All UT Law students, faculty, and staff are
invited to attend the IP Symposium, free of charge. CLE credit is available for practitioners who register and attend;
registration for CLE credit begins at 8am at the Law School. Presentations begin at 8:30am and continue until 5:30pm.

UT Law Faculty members speaking at the event include Professors Louis Pirkey, Greg Vetter, John Golden, and
Dr. Steven Nichols. The Honorable Lee Yeakel, U.S. District Judge and The Honorable Andrew Austin,
U.S. Magistrate Judge, both from the Western District of Texas, will participate on a Patent Reform Panel.

For more information, including a complete list of speakers and events, visit the IP Symposium website at:

Note: Lunch is for registered participants only. However, limited space is available for non-registered guests to listen to
the Keynote beginning at 1pm.

The Texas Journal of Women and the Law is holding a Spring 2007 write on for 1L and 2L students interested in
joining the Journal. Interested students should submit an application, writing sample, and resume. Applications are
available at the Communications Desk or in the TJWL office in room 4.134B.

Applications will be accepted until February 26, 6 p.m. and can be turned in to the TJWL mailbox in the
Communications Center or the TJWL office, room 4.134B.

January, 2007

Foreword, 1
Suedeen G. Kelly, Federal Energy Regulatory Commissioner
Significant Environmental Challenges to the Development of LNG Terminals in the United States, 5
Kevin A. Ewing and Erik E. Peterson
LNG Sales and Shipping: The Evolution of Delivery Terms from the Empirical to the Extential, 35
John Cogan
The 2005 Energy Policy Act: Analysis of the Jurisdictional Basis for Federal Siting of LNG Facilities, 57
Audrey Cumming and Rachel G. Clingman
So What's Your Excuse? An Analysis of Force Majeure Claims, 91
Jay D. Kelley
Split Estate and Site Remediation Issues on Tribal Lands, 125
Dr. Christopher S. Kulander

Note & Comment
The North American Gas Markets and the Role of the Regulatory Agencies, 167
Mayuca Salazar
Recent Developments in Texas, United States, and International Energy Law, 211

Judicial Tort Reform in Texas, 1
David A. Anderson
Overview of Multidistrict Litigation Rules at the State and Federal Level, 47
Yvette Ostolaza & Michelle Hartmann
Mootness in the Class Action Context: Court-Created Exceptions to the "Case or Controversy" Requirement
of Article III, 77
Daniel A. Zariski, Leonard J. Feldman, Malaika M. Eaton & Darin M. Sands

Mining the Patent Thicket: The Supreme Court's Rejection of the Automatic Injunction Rule in
eBay v. MercExchange
, 119
David B. Conrad
The Act of God Defense: Why Hurricane Katrina & Noah's Flood Don't Qualify, 155
Casey P. Kaplan
Scheme Liability: Rule 10b-5(a) and Secondary Actor Liability after Central Bank, 183
Nicholas Fortune Schanbaum

Confusion in the Digital Age: Why the De Minimis Use Test Should Be Applied to Digital Samples of
Copyrighted Sound Recordings, 93
Mike Suppapola
Traditional Knowledge and Intellectual Property in Brazilian Biodiversity Law, 131
John Tustin

State Bar News, 167

The Texas Journal of Oil, Gas, and Energy Law (TJOGEL, is beginning is spring membership drive for its
adjunct Oil and Gas Law Society. Members of the Oil and Gas Law Society are allowed to participate in TJOGEL's
upcoming career fair in February, attend TJOGEL's annual banquet (also in February), participate on TJOGEL intramural
teams, and partake in our frequent happy hour and networking events with practitioners from around the state...
all included as a part of their dues!

As well, members of the Oil and Gas Law Society are allowed to run for leadership positions on the TJOGEL Editorial
Board in their 2L year, offering them a unique opportunity to be at the helm of one of the largest journals here at
UT Law.

Dues are $60 per year. Please contact TJOGEL Managing Editor Kevin Robnett ( to join.

AUSTIN, Texas —The Capital Punishment Center and the American Journal of Criminal Law at The University of Texas
School of Law will host a symposium on efforts to improve legal representation in capital cases on Thursday, Feb. 8.
The event is free and open to the public.

The symposium, “Capital Representation in Transition: Emerging Standards and Effective Enforcement,” will be held in
the Law School’s Eidman Courtroom from 8:45 a.m. to 5 p.m.  A reception will follow in the Jamail Pavilion from
5 p.m. to 6 p.m.

Symposium participants will discuss the increased efforts of courts, legislatures, and bar organizations to improve
representation in capital cases in Texas and across the nation. Speakers will include state and federal judges,
members of national and state bar committees focused on improving capital representation, lawyers, and scholars.

Four topics will be addressed at the symposium. They include prevailing representational practices in Texas; the
effects of inadequate state court representation; national and state representational guidelines in capital cases;
and enforcement of standards of representation. 

To view details of the symposium’s schedule go to click here.

“The Capital Punishment Center is excited to hold this timely event,” said Professor Jordan Steiker, co-director of the
Capital Punishment Center.  “We have arrived at a point where participants in capital litigation – prosecutors, defense
counsel, and judges – are united in their determination to improve representation,” he said.

“But as in other areas of important public policy, increased resources and determination are not enough.  We must
evaluate the structures in which capital representation occurs and focus on the institutional designs that have
produced the present crisis of inadequate representation,” Steiker continued. “The participants in this symposium
bring extraordinary experience and insight to this task and are extraordinarily well-suited to critically engage the
present and creatively reimagine the future,” Steiker said.
UT Law’s Capital Punishment Center and American Journal of Criminal Law are the primary sponsors of the symposium,
which is also co-sponsored by the ABA Death Penalty Representation Project and the William Wayne Justice Center
for Public Interest Law at UT Law. 

The Capital Punishment Center promotes research and practice opportunities in death penalty law.  The Center
sponsors academic events, pursues research projects concerning the administration of the death penalty, and
houses the Capital Punishment Clinic, which provides direct representation and assistance to indigent defendants
on death row in Texas.

The American Journal of Criminal Law is one of the top student-edited legal journals in the nation devoted to
exploring current issues in criminal law.

Related Links:
The American Journal of Criminal Law:
UT Law Creates Capital Punishment Center and Expands Programs Relating to the Death Penalty:

Capital Punishment Clinic Returns to U.S. Supreme Court:
ABA Death Penalty Representation Project:

December, 2006

In Facetiis Verititas: How Improvisational Comedy Can Help Trial Lawyers Get Some Chops, 1
Steven Lubet & Thomas Hankinson
"Hail to the Potomac Drainage Basin Indigenous Persons": Has Political Correctness Gone Too Far?, 15
Marvin L. Longabaugh

Conflicting Beats: Proposing the Adoption of an Additional Obligation Within the WTO TRIPS Agreement
Under Article 14 to Recognize Digital Sampling and Digital Sampling Infringement, 31
Tara E. Castillo
Attempting to Herd Spam and the Effects of White Buffalo Ventures, L.L.C. v. University of Texas at Austin, 63
Carl M. Szabo
Sharing Television Through the Internet: Why the Courts Should Find Fair Use and Why It May Be A Moot Point, 79
Sheila Zoe Lofgren Collins

Tribal Disobedience , 137
Robert Odawi Porter
Write Separately: Justice Clarence Thomas's "Race Opinions" on the Supreme Court, 185
Calvin J. TerBeek

Held Hostage: Identity Citizenship of Iranian Americans, 211
Sara Mahdavi

Reconceptualizing Confrontation After Davis, 271
Tom Lininger
What's Wrong with Involuntary Manslaughter?, 333
Stephen P. Garvey

Book Review
Frontiers of Justice: The Capabilities Approach vs. Contractarianism, 385
Samuel Freeman

Frontiers of Justice: Disabilities, Nationality, Species Membership

Be Careful What You Wish For, You Just Might Get It: The Effect on
Chapter 11 Case Length of the New Cap on a Debtor's Exclusive Period to
File a Plan, 431
Neill D. Fuquay
From Bivins to Malesko and Beyond: Implied Constitutional Remedies and
the Separation of Powers, 471
Ryan D. Newman

I would like to encourage you to write on to the Texas Review of Law & Politics (TROLP)! TROLP is the only
conservative/libertarian law journal at the law school, one of the most prestigious in the country, and is the
second most cited journal at UT. Recent authors include US Attorney General Edwin Meese III,
Judge Edith Jones of the 5th Circuit, US Solicitor General Ted Olson, famed pundit Ann Coulter, and
US Senator John Cornyn.

Write-on packets for students interested in joining TROLP are NOW AVAILABLE. The packet may be
downloaded at (click on the News/Current Issues link) or, starting today, you can pick one up
from the Communications Center in the atrium. Instructions are included in the packet. To give you a little bit
of a break after your finals, the deadline for our write-on is MONDAY, JANUARY 22, 2007.

Joining a journal during your first year provides a great opportunity to add research and editing experience
to your resume in time for Spring OCI. It also gives you crucial early experience and seniority if you are
interested in obtaining a more senior position within TROLP. TROLP is also more relaxed than many other journals.
Instead of an hours requirement, members are only required to attend 3 editing sessions and 2 final edits
per semester. The editing sessions are usually on Fridays or Saturdays and usually last 6 hours or less.
If necessary, lunch is provided at all edit sessions. The final edits usually last 2 hours or less. This amounts to
approximately 25 hours of work. Our goal in all the work we do is to improve our friendships while producing a
great journal. Student notes are NOT required, but members do have the opportunity to publish with TROLP.

November, 2006

The Ninth Amendment: It Means What It Says, 1
Randy E. Barnett
Stealth Marketing and Editorial Integrity, 83
Ellen P. Goodman

Book Review
Tweaking Antitrust's Business Model, 153
Thomas A. Lambert

The Antitrust Enterprise: Principle and Execution

Judicial Jurisdiction Stripping Masquerading as Ripeness: Eliminating the Williamson County State Litigation Requirement
for Regulatory Takings Claims, 199
Scott A. Keller
Liquefied Natural Gas Terminals, Community Decisionmaking, and the 2005 Energy Policy Act, 243
James B. Lebeck


The Focus Factor, 147
B. Glenn George
Strategies for Combating Sexual Harassment: The Role of Labor Unions, 183
Ann C. Hodges
Subordinated Stills: An Empirical Study of Sexist Print Advertising and its Implications for Law, 229
Cheryl B. Preston

The Making of Marriage in Thirteenth Century England: Verb Tense, Popular Legalism, and the
Alexandrine Law of Marriage, 271
Brandy Schnautz Johnson

October, 2006

Symposium: Representing Culture, Translating Human Rights

Foreword, 385
Karen Engle

Lawless World: The Cultures of International Law, 387
Philippe Sands

Panel I: Translating Human Rights
Shannon Speed - Introduction, 399
Florian F. Hoffman - "Shooting into the Dark": Toward a Pragmatic Theory of Human Rights (Activism), 403
Derek Jinks - Translation of Global Human Rights Norms: The Empirical Dimension, 415
Balakrishnan Rajagopal - Culture, Resistance, and the Problems of Translating Human Rights, 419

Panel II: Sovereignty
Gerald Torres - Introduction, 423
Srinivas Aravamudan - Sovereignty: Between Embodiment and Detranscendentalization, 427
Antony Anghie - Nationalism, Development and the Postcolonial State: The Legacies of the League of Nations, 447
David Kennedy - Sovereignty: Responding to Anghie and Aravamudan, 465

Panel III: Asylum
Karen Engle - Introduction, 469
Ranjana Khanna - Asylum, 471
Gregor Noll - Asylum Claims and the Translation of Culture into Politics, 491
Charles Piot - Asylum and Culture: Comments on Khanna and Noll, 503
Gaurav Desai - Isn't Multiculturalism Bad for Asylum?, 507

Peace and Security: The Challenge and the Promise, 513
Surakiart Sathirathai

Bibliography, 529
Kumar Percy and Karen Engle


Is Clarett Correct? A Glance at the Purview of the Antitrust Labor Exemptions , 1
Christian Dennie
Reversing the Refs: An Argument For Limited Review in Horse Racing , 23
Bennett Liebman
Anti-Scalping Laws: Should They Be Forgotten?, 55
Jonathan C. Benitah
Precedent Be Damned - It's All About Good Politics & Sensational Soundbites, 79
Clay Calvert & Robert D. Richards

September, 2006

September marks the beginning of our journals' academic year. Scroll upward for the year's accomplishments.