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.