Taking It to the Streets

Stuart P. Green

89 Texas L. Rev. See Also 61

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Blackmail criminalizes the threat to do something that would not be criminal if one actually did it.  It is seemingly paradoxical that it should be a crime to make certain kinds of threats, even though the threatened acts are perfectly legal.  In Taking It to the Streets, Professor Green responds to Competing Theories of Blackmail: An Empirical Research Critique of Criminal Law Theory by Professor Paul Robinson et al.  Green finds that the authors ingeniously derive concrete scenarios from abstract theories, that they provide a concise summary of the various blackmail theories, and that their methodological techniques are exemplary.  Putting aside the authors’ achievement, Green focuses on the article’s shortcomings.  Green characterizes the authors’ article as attempting to solve the problem in a novel if unusual way: by asking a collection of laypersons what they think should count as blackmail.

Blackmail is not unique in criminal law.  Similar to fraud and false pretenses, blackmail is a form of theft in which the blackmailer attempts to obtain property from the victim without his valid consent, and uses a coercive, though otherwise lawful act, to do so.  However, blackmail is distinguished based on the subject matter of the threat.  Demands for money based on threats to do some kinds of acts (expose embarrassing information) but not others (file a lawsuit) are considered criminal.  Green asks, then, whether there is any principled way to distinguish between these two kinds of threats.

Robinson and his colleagues ask this question to ordinary people.  In doing so, they try to determine if the law is in harmony with the community’s sense of justice.  Green provides several contexts in which he thinks it is useful to have data concerning community views on particular offenses.  For example, “it is useful to know if people believe that a particular paradigmatic act is sufficiently blameworthy to justify criminal sanctions in the first place.”  He finds that the authors’ study offers valuable data as to these issues.

In addition to gathering data, the authors also wanted the scenarios to reflect a range of prominent theorists’ views about why the law is justified in treating blackmail as a crime.  Green considers this effort to translate abstract theory into concrete scenarios to be “the most impressive achievement of the article.”  Yet, he thinks the theorists cited were probably trying to formulate a critical theory to explain why the core cases of informational blackmail should be treated as a crime, and not to devise a theory that would accord with widely shared moral intuitions.  Nor is Green sure that this is a satisfactory way of testing which theory the public would favor.  Instead, he suggests it might be better to explain the leading theories and ask the public directly which they favor, rather than attempt to translate them into testable scenarios first.

Lastly, Green turns to the article’s taxonomy of state blackmail statutes.  He argues that one important factor the authors failed to include is the breadth of the range of threats criminalized.  That is, not only what the statutes require the blackmailer to demand but also what they require him to threaten.  Green finds it puzzling that the authors did not include this factor in their schema.

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.