89 Texas L. Rev. See Also 157
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.
Michael S. Knoll & Daniel M. G. Raff
89 Texas L. Rev. See Also 35
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.
Simone M. Sepe
89 Texas L. Rev. See Also 143
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.”
Caroline Mala Corbin
89 Texas L. Rev. See Also 125
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.
89 Texas L. Rev. See Also 1
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.
89 Texas L. Rev. See Also 113
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.
89 Texas L. Rev. See Also 15
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.
Kristin E. Hickman
89 Texas L. Rev. See Also 89
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.
Sara C. Bronin
89 Texas L. Rev. See Also 79
In response to Jamie France’s note, A Proposed Solar Access Law for the State of Texas, Professor Bronin urges future commentators to focus on three additional areas of inquiry related to proposed solar rights regimes. Bronin argues that such proposals would be strengthened by discussion of potential legal challenges to the proposals, related political issues, and renewable energy microgrids.
Ms. France’s proposal for the State of Texas includes the elimination of preexisting private property restrictions that negatively affect solar access. Bronin argues that this proposal would be strengthened by a discussion of potential challenges under federal and state takings clauses. Additionally, Ms. France’s suggestion that zoning ordinances protect homeowners’ solar access would benefit from a discussion of challenges that might be raised by home rule cities in Texas. Furthermore, to provide a full perspective, a discussion of possible alternative rules for Houston, which lacks a zoning ordinance, might add to Ms. France’s proposal, according to Bronin.
Bronin also emphasizes that proposals for solar rights regimes, such as that of Ms. France, often affect various interest groups, and commentators should address the political issues that this creates. Specifically, in discussing Ms. France’s proposal for the State of Texas, Bronin identifies the lack of political support for small-scale renewable energy installations as opposed to large-scale projects, Texas’s current budget shortfall, and powerful interests groups that are affected by the proposal.
Finally, Bronin encourages other commentators to consider advocating for renewable energy microgrids. Bronin has described these as “small-scale, low-voltage distributed generation between neighbors for energy derived from sources such as solar collectors, wind power systems, microturbines, geothermal wells, and fuel cells, which have minimal negative impact on the environment.” Bronin believes that renewable energy microgrids “should be a key part of solar access regimes in any state.”
John M. Golden
88 Texas L. Rev. See Also 211
Professor Golden’s response to Professor Crane highlights the limitations on Prof. Crane’s thesis, notably the difficulties that accompany an attempt to precisely calculate awards sufficient to catalyze creative activity both in the short-term and long-term. Professor Golden also takes issue with Professor Crane’s arguments for permanent injunctions to nonpracticing patentees and his defense of private-bargaining as a method of circumventing questions of the court’s institutional competence in patent-rate setting.