The Establishment Clause: Political Metaphor or Guarantor of Rights?

Laura S. Underkuffler

89 Texas L. Rev. See Also 49

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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.

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

Michael S. Knoll & Daniel M. G. Raff

89 Texas L. Rev. See Also 35

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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.

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

Chris S. Stewart

89 Texas L. Rev. See Also 169

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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.”

Agency Hygiene

Nicholas Bagley

89 Texas L. Rev. See Also 1

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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.

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

Mark Tushnet

89 Texas L. Rev. See Also 157

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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.

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

David Millon

89 Texas L. Rev. See Also 15

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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.

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

Simone M. Sepe

89 Texas L. Rev. See Also 143

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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.”

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

Caroline Mala Corbin

89 Texas L. Rev. See Also 125

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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.

The Law Professor as Counterterrorist Tactician

Lawrence Rosenthal

89 Texas L. Rev. See Also 113

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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.

Agency-Specific Precedents: Rational Ignorance or Deliberate Strategy

Kristin E. Hickman

89 Texas L. Rev. See Also 89

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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.