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.”
89 Texas L. Rev. See Also 69
Professor Barry evaluates Professor Fleischer’s analytical framework developed in Regulatory Arbitrage, which addresses how actors respond generally to regulations, but also the related issue of what limits parties’ ability to avoid regulations. Barry offers praise for the framework’s flexibility, ability to consider issues of regulatory arbitrage, and policy neutrality, but provides three comments regarding the framework.
First, Barry argues that “professional constraints” arising from being a member of the legal profession and a partner at a law firm are not as irrelevant as Fleischer claims with regard to their ability to restrain regulatory arbitrage. Barry draws from his experience in professional practice in expressing his belief that while they are far from being a perfect prevention mechanism, such professional constraints offer some value.
Second, Barry expresses surprise at the lack of discussion in Fleischer’s article of the ability of family members to avoid regulations through collective action, since such discussion would support Fleischer’s arguments regarding the effect of anti-avoidance regimes on regulatory arbitrage. Specifically, regardless of the fact that families are in the best position to circumvent regulations due to their relationships, avoidance by such families is not believed to be a major issue, according to Fleischer. Rather, the archetypal regulatory avoider is the sophisticated repeat player in the financial markets. Barry argues that the effectiveness of anti-avoidance legal rules reconciles this discrepancy, thereby strongly supporting one of the article’s main arguments.
Third, Barry conveys concern with Fleischer’s usage of financial arbitrage, a more established concept, as a model to analyze regulatory arbitrage. Barry’s apprehension is limited to how using such a framework may distract the readers’ attention from a more pertinent definition of regulatory arbitrage. More precisely, financial arbitrage occurs when there are multiple prices on economically identical assets, whereas regulatory arbitrage occurs when there is a mismatch between the economics of a transaction and its concomitant regulation, and using examples from the former situation to inform the latter may place one “on the wrong track.”
Michael J. Gerhardt
88 Texas L. Rev. See Also 43
In his Response to Professor Sacharoff’s Article, Professor Gerhardt critiques the use of sources, contending that Professor Sacharoff reads too much into the “antimonarchical premises” of the Constitution and too little into other sources. Gerhardt suggests alternatives to Sacharoff’s reading of the structure and context of the Constitution, as well as precedents and analogies that might inform our judgment about the extent to which former presidents might or should have any control over executive privilege.
Craig M. Boise
88 Texas L. Rev. See Also 175
In his Response to Professor Kirsch, Professor Boise critiques the assertion that administrative regulations are superior to technical explanations in interpreting tax treaties. He explains three imperatives that any interpretation regime must meet (authoritativeness, comprehensiveness, and timeliness) before offering other alternatives on optimal treaty guidance.
Elizabeth Chamblee Burch
88 Texas L. Rev. See Also 55
In her Response to Professor Tidmarsh’s Article articulating the “do no harm” principle, Professor Burch explores Tidmarsh’s theory from a procedural legitimacy perspective. She considers the assumption that in any given class action both attorneys and class representatives tend to act as self-interested homo economicus. She argues that (1) tailoring adequacy to egocentric behavior by providing a floor to minimally acceptable conduct creates a troubling anchor that is at odds with agency and ethical principles; and (2) this proposed change, particularly as it tolerates collusion and unequal treatment among class members, may adversely impact perceptions of procedural justice and class-action legitimacy.
88 Texas L. Rev. See Also 235
In his response to Prof. Brian Galle, Prof. Rob Atkinson offers a “republican philanthropy” perspective to Prof. Galle’s “charitable charity” approach. First, Prof. Atkinson helpfully places Prof. Galle’s thesis in the larger context of charity scholarship; he elucidates the history and differences between nonprofit and for-profit charitable institutions, comparing and contrasting them with governmental institutions. Prof. Atkinson argues that Prof. Galle’s approach makes a valuable contribution to rebutting the for-profit charity assumption that nonprofits are inefficient; however, he believes that governmental institutions are in the best position to provide charitable services. Using the University of Texas School of Law as an example, he demonstrates that republican philanthropies—institutions that are neither for-profit nor traditional “charitable charities”—sponsor important public goods like this debate itself.